Punjab-Haryana High Court
Kiran vs State Of Haryana And Ors on 10 November, 2014
Author: Sabina
Bench: Sabina
Crl. Revision No. 1797 of 2014 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Revision No. 1797 of 2014
Date of Decision: 10.11.2014.
Kiran ......Petitioner
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. S.K.Verma, Advocate
for the petitioner.
Ms. Loveleen Dhaliwal Singla, Sr. DAG, Haryana.
Mr. Raman Chawla, Advocate
for respondents No. 2 and 3.
****
SABINA, J.
By way of this petition, petitioner has challenged the order dated 19.5.2014 whereby application moved by the prosecution under Section 319 of the Code of Criminal Procedure, 1973 ('Cr.P.C' for short) for summoning respondent No. 3 as an additional accused, was dismissed.
Learned counsel for the petitioner has submitted that there was sufficient material on record to order the summoning of respondent No. 3 to face the trial as an additional accused. In this regard, reliance has been placed on the statement of the prosecutrix (Annexure P-1).
Learned counsel for respondents No. 2 and 3, on the other hand, has opposed the petition and has submitted that after GURPREET SINGH 2014.11.17 16:14 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 1797 of 2014 -2- thorough investigation of the case, challan was not presented against respondent No. 3 as she was found innocent.
Section 319 Cr.P.C. reads as under:-
"Power to proceed against other persons appearing to be guilty of offence:-
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then-
(a) the proceedings in respect of such person
shall be commenced afresh, and
witnesses re-heard.
(b) subject to the provisions of clause (a), the
GURPREET SINGH
2014.11.17 16:14
I attest to the accuracy and
authenticity of this document
Chandigarh
Crl. Revision No. 1797 of 2014 -3-
case may proceed as if such person had
been an accused person when the Court
took cognizance of the offence upon
which the inquiry or trial was
commenced."
Thus, as per the above provision, the Trial Court may summon any person to face the trial as an accused if there is sufficient material available against the said person during trial to proceed against him.
While dealing with the powers under Section 319 Cr.P.C., the Apex Court in 'Hardeep Singh versus State of Punjab and others, 2014(1) R.C.R. (Criminal) 623, has held as under:-
"Question Nos. 1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section GURPREET SINGH 2014.11.17 16:14 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 1797 of 2014 -4- 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. ? Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross- examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person GURPREET SINGH 2014.11.17 16:14 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 1797 of 2014 -5- is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross- examination.
Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question No. V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not GURPREET SINGH 2014.11.17 16:14 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 1797 of 2014 -6- charge-sheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ?Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. The matters be placed before the appropriate Bench for final disposal in accordance with law explained hereinabove."
In the present case, respondent No. 3 was also arrayed as an accused. However, during investigation, she was found innocent and challan was presented against her son Rohit. During the pendency of the trial, prosecution moved an application under Section 319 Cr.P.C. for summoning respondent No. 3 as an additional accused. In the present case Annexure P-1 is the statement of the prosecutrix. So far as respondent No. 3 is concerned, qua her following allegations have been levelled:-
" x x x x x Baljit Kaur advised me to forget about the incident and threatened to kill me, if I disclosed the incident to anyone.
x x x x x Baljeet Kaur, mother of Rohit took Rs. 60,000/- (Rs. Sixty thousand) and his sister Payal took Rs. 50,000/- GURPREET SINGH 2014.11.17 16:14 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 1797 of 2014 -7- (Rs. Fifty thousand) from me.
x x x x x On 24.4.2013, Baljeet Kaur came to my house and abused me. She also threw bricks on my scooty. When I called the Municipal Councilor of the ward there, Baljeet Kaur went away. I again changed my house and shifted to House No. 183 in the same colony.
x x x x x On 30.5.2013, Baljeet Kaur called me to her house in Jawahar Nagar. She asked me to bring my Lap-top with me. When I reached there, Baljeet Kaur dragged me by my hair and took me to the street where she beat me up with a stick. I made a complaint in this regard at Police Post PLA but no action was taken by the police. Rohit and his mother collectively ruined me.
x x x x x Although, in the present case, respondent No. 3 was found innocent during investigation and challan was not presented against her but from the statement of the prosecutrix, it is evident that specific allegations have been levelled against respondent No. 3. The Trial Court, thus, fell in error while dismissing the application moved by the prosecution for summoning respondent No. 3 as an additional accused whereas respondent No. 3 was liable to be summoned as an additional accused to face the trial along with her co-accused Rohit who was already facing the trial.
Accordingly, this petition is allowed. Impugned order dated 19.5.2014 is set aside. Consequently, application moved by the prosecution under Section 319 Cr.P.C. for summoning GURPREET SINGH 2014.11.17 16:14 I attest to the accuracy and authenticity of this document Chandigarh Crl. Revision No. 1797 of 2014 -8- respondent No. 3 as an additional accused, is allowed.
(SABINA) JUDGE November 10, 2014 Gurpreet GURPREET SINGH 2014.11.17 16:14 I attest to the accuracy and authenticity of this document Chandigarh