Punjab-Haryana High Court
Rakesh Batra vs State Of Haryana on 14 August, 2000
Equivalent citations: I(2001)DMC324
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This is a petition under Section 482, Cr.P.C. filed by the petitioners seeking quashment of the orders dated 13.7.1999 and 18.8.1999 passed by the Additional Sessions Judge, ordering the summoning of present petitioners as accused alongwith the co-accused and on account of their non-appearance in the Court, ordering the issuance of non-bailable warrants against them, respectively.
2. I have heard the learned Counsel for the parties and have gone through the record carefully.
3. The order dated 13.7.1999 was passed by the learned Additional Sessions ' Judge, on the application under Section 319, Cr.P.C. filed by the Public Prosecutor for summoning the petitioners as accused in a case under Sections 406, 498A, 312, 313, 506, 120B, I.P.C. In the application (copy Annexure P-2), it was alleged that from the statement of Smt. Rakhi-complainant, it has come on the record that the present petitioners were also harassing her and accordingly it was requested that the present petitioners be also summoned for trial, "as per examination-in-chief of complainant". The said application was contested by the accused Naresh, etc. by filing a written reply. Thereafter the learned Additional Sessions Judge vide order dated 13.7.1999 ordered the summoning of the petitioners as accused, relying on the statement made by P,W. 2 Smt. Rakhi, in which she had stated that the present petitioners were also involved in harassing her, besides the other accused who were already facing trial.
4. From the perusal of the above, it would be clear that the basis for summoning the petitioners, as accused, was the statement of P.W. 2 Smt. Rakhi. A perusal of the said statement, a copy of which has been produced before me, would show that after the examination-in-chief of Smt. Rakhi was recorded as P.W. 2, one of the co-accused namely, Dr. Mrs. Vijay Kapoor was given an opportunity to cross-examine the said witness. When the cross-examination of the said witness on behalf of co-accused Dr. Mrs. Vijay Kapoor was in progress, the learned Public Prosecutor moved the application under Section 319, Cr.P.C. for summoning the present petitioners as accused and accordingly the further cross-examination of the said witness as deferred by the learned Additional Sessions Judge. Thereafter, relying on the statement of Smt. Rakhi, the learned Additional Sessions Judge ordered the summoning of the present petitioners as accused in this case vide order dated 13.7.1999.
5. In 1998 Supreme Court Cases (Criminal) 1554=VIII (1998) SLT 40, Ranjit Singh v. State of Punjab, it has been held by Their Lordships of the Supreme Court as under:
"20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of. the new person or persons to the array of the accused. Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers."
6. From the perusal of the above, it would .be clear that the Sessions Court had got the power to summon a person as an accused only under Section 319, Cr.P.C. when the case reaches the evidence collection stage. It would, also be clear from the above that under Section 319, Cr.P.C, it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers. This would mean that the Sessions Court is competent to exercise the powers under Section 319, Cr.P.C. even after recording the evidence of one witness. Of course the order of summoning would be passed only if from the testimony of the said witness a prima facie case was made out for proceeding against the said person.
7. In the present case, the learned Additional Sessions Judge ordered the summoning of the petitioners as accused even without completely recording the statement of P.W. 2 Smt. Rakhi. On the other hand, the statement of Smt. Rakhi was made the basis for ordering the summoning of the petitioners as accused in this case. As referred to above the cross-examination of P.W. 2 Smt. Rakhi on behalf of one of the accused was still in progress when the application under Section 319, Cr.P.C. was moved and thereupon, further cross-examination of the witness was deferred. No opportunity was given to the other two accused namely, Naresh and Jagdish to cross-examine Smt. Rakhi, by the time when her cross-examination was deferred. Under these circumstances, it would be clear that the testimony of Smt. Rakhi could not be read in evidence even at that stage, as the accused had not been given the opportunity to cross-examine this witness. Incomplete statement of a witness could not be read in evidence. Once the statement of P.W. 2 Smt. Rakhi is taken out of consideration, there would be nothing else on the record which may justify the summoning of the present petitioners as accused in this case.
8. In view of my detailed discussion above, in my opinion, the order dated 13,7.1999 passed by the Additional Sessions Judge ordering the summoning of the petitioners as accused has to be set aside. Once the order dated 13.7.1999 is set aside, the subsequent order dated 18.8.1999 ordering the summoning of the petitioners through non-bailable warrants is also liable to be set aside.
9. For the reasons recorded above, the present petition is allowed, the orders dated 13.7.1999 and 18.8.1999 are set aside and the case is sent back to the Trial Court to proceed further in the matter in accordance with law.
10. The learned Additional Sessions Judge shall now proceed to conclude the cross-examination of P.W. 2, Smt. Rakhi, by giving the opportunity to all the accused to cross-examine the said witness. After cross-examination is concluded, the learned Additional Sessions Judge would be competent to redecide the application under Section 319, Cr.P.C. already filed by the Public Prosecutor in accordance with law.
11. The Public Prosecutor would also be entitled to file a fresh application Under Section 319, Cr.P.C. if so advised and if afresh application is moved by the Public Prosecutor, the learned Additional Sessions Judge shall decide the same in accordance with law.