Himachal Pradesh High Court
__________________________________________________________________ vs State Of Himachal Pradesh And Anr on 7 January, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No.184 of 2018
.
Reserved on 10.12.2019
Decided on: 7 .1. 2020
__________________________________________________________________
Anmol Sharma ...........Petitioner
Versus
State of Himachal Pradesh and Anr. ..........Respondents
__________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Arjun Lal, Advocate.
For the Respondent : Mr. Arvind Sharma and Mr. Anil
Jaswal, Additional Advocates
General, for the respondent-State.
r Mr. Feroz Khan Ghazi and Mr.
Ateendra Saumya Singh, Advocates,
for respondent No.2.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
By way of present petition filed under Section 482 Cr.PC, prayer has been made to quash and set-aside order dated 7.9.2017 passed by the learned ACJM Nalagarh, District Solan, HP, in case No. 101/ 2 of 2011, whereby an application having been filed by the respondent-complainant under Section 319 Cr.PC, praying there in to summon the petitioner as an additional accused came to be allowed.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 22. For having bird's eye view, certain facts, which may be relevant for adjudication of the present case are that on 28.9.2006, .
an agreement to sell came to be executed inter-se person namely late Hem Chand and respondent No.2-complainant i.e. M/s Innovative Textiles Pvt. Ltd., for the sale of land for a total consideration of Rs. 7.35 crores. As per the complainant, earnest money of Rs. 2,20,50,000/- was paid on the same day vide cheque No. 297051 drawn at HDFC Bank, New Delhi to person namely Hem Chand. However, subsequently, it transpired that land under sale was already mortgaged with State Bank of India as collateral to the loan facilities availed by M/s Heman Noble Biotec Laboratories Pvt.
Ltd., wherein present petitioner Anmol Sharma was one of the Director. As per complainant above named person i.e. petitioner in the capacity of Director had executed loan agreement with State Bank of India along with his father late Hem Chand. In the aforesaid background FIR bearing No. 108 of 2007 came to be registered against persons namely Hemchand Sharma and present petitioner Anmol Sharma on the complaint having been made by respondent No. 2 at Police Station Connaught place under Sections 406, 415, 420, 467 and 468 read with Section 120 B of IPC. Late ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 3 Hemchand filed petition in the High Court of Himachal Pradesh, seeking quashment of aforesaid FIR registered at Delhi, but fact .
remains that FIR as detailed hereinabove was the not quashed, but same was transferred from police station Connaught Place New Delhi to Police Station Nalagarh, Police District Baddi, Himachal Pradesh in terms of order dated 6.10.2019 passed by this court in CWP No. 294 of 2007. Pursuant to aforesaid directions issued by the Court in aforesaid CWP, FIR bearing number 15 of 2010 came to be registered at Police Station Nalagarh, Police District Baddi Himachal Pradesh. It is not in dispute that contents of FIR number 15 of 2010 registered at Baddi are verbatim same as was recorded in FIR No. 108 registered at Police Station Connaught Place, Delhi.
3. After completion of investigation, police presented challan in FIR No. 15 of 2010 in the court of learned JMIC Nalagarh, HP, on 6.4.2011 against person namely Hemchand Sharma. Present petitioner was not charge sheeted on the ground that no evidence was found against him in the investigation. On 20.4.2011, learned JMIC Nalagarh took cognizance, whereafter criminal case bearing No. 101/2 of 2001 came to be registered against late Shri Hemchand Sharma. It is also not in dispute that respondent ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 4 complainant never laid challenge, if any, to the non-inclusion of present petitioner as co-accused in the aforesaid case filed in the .
court of learned JMIC pursuant to investigation conducted in FIR number 15 of 2010. Record reveals that late Hemchand filed an application under Section 239 CrPC, seeking his discharge. Vide order dated 8.1.2015 discharge application filed by the late hemchand Sharma was partly allowed, as a consequence of which, charges under sections 467, 568 and 471, were dropped, whereas court below on the basis of material adduced on record along with charge sheet proceeded to frame charge against late Hemchand for having committed offence punishable under section 420 of IPC. Though first order framing charge was also assailed by late Hemchand by way of criminal revision No. 88 of 2015, but same was dismissed vide order dated 27.5.2016. Zimini orders passed by the court below reveal that from 17.4.2015 to 24.8.2015, statements of some of prosecution witnesses were recorded, but since despite sufficient opportunity, witnesses were not cross examined, trial court closed right of the accused to cross examine the prosecution witnesses.
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 54. Being aggrieved and dissatisfied with closure of right to cross examine the prosecution witnesses, late Hemchand preferred .
criminal revision petition under section 482 CrPC., seeking therein permission to cross examine the prosecution witnesses. Aforesaid prayer made by the late Hem Chand was allowed and accordingly, he was granted opportunity to cross examine the prosecution witnesses. After passing of aforesaid order, cross examinations of PW1 and P W 4 were conducted and depositions of PW 3 and PW4 were completed.
5. Zimini orders passed by the court below reveal that on 2.3.2017, court below while rejecting an application filed by late Hemchand, seeking therein exemption from personal appearance issued non bailable warrants against him with a view to secure his presence on 3.3.2017. On 3.3.2017, matter came to be adjourned to 4.3.2017. On 4.3.2017, since late Hemchand failed to put in appearance despite issuance of non bailable warrants, court below issued arrest warrants against him returnable for 13.6.2017.
On 13.6.2017, the arrest warrants issued against the accused were not received back, but learned counsel representing him before the Court below apprised the court that the accused has expired ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 6 and as such court below adjourned the matter to 5.7.2017, enabling the prosecution to place on record death certificate of .
late Hemchand. At this stage, it may be relevant to mention that till passing of order dated 13.7.2017, there is no reference, if any, with regard to filing of application by respondent No.2-complainant under section 319 CrPC, seeking therein summoning of the petitioner, but perusal of endorsement given on the front page of the application having been filed by respondent No.2 under section 319 CRPC (available at page 315 of record of the court below) seeking therein summoning of the petitioner, suggests that such application was presented by counsel representing complainant on 20.5.2017, but same was order to be listed on 13.6.2017 for filing reply.
6. Interestingly, the zimini order dated 13.6.2017 nowhere talks with regard to listing/ filing of aforesaid application under section 319 CrPC., by the respondent-complainant, but definitely order dated 5.7.2017 passed by the court below reveals that some consideration was held on the aforesaid application filed under Section 319 CrPC and court posted the matter for orders on the application as well as for filing of the death certificate of the ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 7 accused on 3.8.2017. On 3.8.2017, court below issued notice to SHO Police Station Nalagarh, directing him to produce death .
certificate of accused on 7.9.2017. Perusal of aforesaid order dated 7.9.2017, reveals that though case was listed for orders under section 319 CrPC, but same was adjourned for reconsideration on the request of counsel representing the applicant, who wanted to tender some documents. Record of the court below reveals that on 7.9.2017, case at hand was listed twice. In pre-lunch session, death certificate of accused late Hemchand Sharma came to be placed on record and court after having heard parties reserved the order in the application under Section 319 CrPC, which ultimately came to be pronounced or dictated after lunch, whereby court below ordered the petitioner Anmol Sharma to be summoned/tried.
In the aforesaid background, petitioner has approached this court in the instant proceedings, praying therein for quashing of order passed by the court below summoning him as an accused.
7. Having heard Shri Arjun Lal, learned counsel for the petitioner, and perused grounds raised in the petition viz-a-viz reasoning assigned by the court below while passing the impugned ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 8 order, this court finds that precisely challenge to impugned order is merely on following grounds:
.
(a.) Since entire criminal trial in case number 101/2 of 2011 stood abated on 13.3.2017 on account of death of sole accused Hem Chand, court below ought not have entertained the application filed by the respondent complainant under section 319 CrPC, seeking therein summoning of the petitioner herein, who was not named in the chargesheet.
(b.) Learned Magistrate on being informed about the death of the sole accused was duty bound in law to order the abatement of the proceedings on account of death of sole accused under section 319 CrPC, especially when on the date of death, no application under section 319 CrPC having been filed by the respondent complainant was pending adjudication.
(c.) Since on 13.3.2017, criminal case initiated against accused late Hemchand stood abated on account of his death, court below had no jurisdiction/authority to ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 9 pass order, if any, on the application under section 319 CrPC, as it had become functus officio.
.
(d.) Court below ought to have issued notice to the petitioner herein before summoning him as an accused.
(e.) Delay and conduct of the respondent-
complainant in moving application under Section 319 CrPC after the death of the sole accused.
(f.) An application under section 319 CrPC was not maintainable as it was not filed by the complainant, rather by private party at whose instance FIR as well as case came to be initiated against late Hemchand .
8. While refuting aforesaid submissions and grounds raised by the learned counsel representing the petitioner, Shri Feroz Khan, learned counsel representing the respondent-complainant contented that impugned order is based on facts as well as law and as such no interference is called for. He contended that petitioner's name and role has been specifically mentioned in the FIR, in the statement recorded under Section 161 CrPC during investigation and in the depositions of PW3 and PW4 recorded ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 10 during trial, perusal whereof clearly reveals that petitioner actively participated in transaction with respondent No.2 since the very .
inception of transaction and as such, it cannot be said that he could not be summoned as an accused in the instant case.
Learned counsel representing the respondent while making this court to peruse material adduced on record along with reply/affidavit contended that petitioner, who had executed loan agreement with State Bank of India, as Director of M/s Hem-an-
Noble Biotec Laboratories Pvt. Ltd has received part of earnest money in his bank account through his father. He contended that civil suit for recovery filed by respondent No.2 in Delhi High Court stands decreed against the petitioner as well as late father vide judgment dated 27.5.2016, perusal whereof clearly reveals that petitioner actively participated in the transaction with respondent No.2 along with his father. While making this Court peruse the depositions of PW 3 and PW 4, wherein role attributed to the petitioner herein has gone unchallenged and un-entertained, Mr. Khan contended that bare perusal of impugned order clearly reveals that sufficient and cogent reasons have been assigned in the impugned order and there is sufficient prima facie evidence on ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 11 record to summon the petitioner as an additional accused.
Learned counsel contended that by now it is well settled that while .
considering an application under section 319 CrPC by the trial court, neither prior notice to the proposed accused is necessary nor he is required to be heard as the right of representation is unavailable to the proposed accused at the stage of summoning.
Mr. Khan further contended that application filed under section 319 CrPC cannot be rejected on the ground of delay because same can be filed at any stage, even at the stage of conclusion of trial.
Mr. Khan further contended that material available on record clearly suggests that delay in trial cannot be attributed to the respondent, rather it is late Hemchand, i.e. father of the petitioner, who delayed the trial by adopting delaying tactics from the beginning of investigation. Mr. Khan further contended that trial of the case does not automatically abate on the death of an accused. He placed reliance on various judgments in cases titled Shashikant Singh v. Tarkeshwar Singh and Ors, (2002) 5 SCC 738, Bholu Ram v. State of Punjab and Ors, (2008) 9 SCC 140, Babubhai Bhimabhai Bokhiria and Ors. v. State of Gujrat and Ors, (2013) 9 SCC 500, Hardeep Singh and Ors. V. State of Punjab and Ors, AIR (2014) ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 12 SC 1400, Rajendra Singh v. State of U.P. and Ors. AIR 2007 SCC 378, Deepu v. State of Madhya Pradesh, AIR 2019 SC 265, J.K. .
International v. State, Govt of NCT of Delhi and Ors., AIR 2001 SC 1142, Rajesh and Ors v. State of Haryana, AIR 2019 SC 2168, The State v. Nirmala and Ors., 2017 (4) RCR (Criminal) 667, M/s Innovative Textiles Pvt. Ltd. and Anr. v. Sh. Hem Chand Sharma and Anr., IA No. 20925 of 2014 in CS (OS) No 1079 of 2009, Hem Chand Sharma (dead) through LR and Anr v. M/s Innovative Textiles Ltd.
and Anr. in RFA (OS) No.10 of 2018 dated 16.8.2018, Hem Chand Sharma (dead) through LR and Anr v. M/s Innovative Textiles Ltd.
and Anr. SLP (C) No. 4941 of 2019).
9. Before ascertaining the correctness and genuineness of aforesaid submissions having been made by the learned counsel for the parties vis-à-vis reasoning assigned by the court below while passing impugned order, it would be apt to take note of provisions of Section 319 CrPC.
319. 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 ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 13 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 a fresh, and the witnesses re- heard;
(b) subject to the provisions of clause
(a), the 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.
10. Section 319 of CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted). Aforesaid doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 14 of Section 319 of CrPC to do justice by punishing the real culprit.
Careful perusal of aforesaid provision of law suggests that when the .
Investigating Agency for one reason or the other does not array one of the real culprits as an accused, court is not powerless in calling the said accused to face the trial. The question that at what stage and in what circumstances should the court exercise its power as contemplated under Section 319 Cr.PC has been elaborately dealt with and answered by the Hon'ble Apex Court in case titled Hardeep Singh v. State of Punjab AIR 2014 SC 1400. In the aforesaid case, Hon'ble Apex Court for proper appreciation of the stage of invoking of the powers under Section 319 CrPC and to understand the meaning that can be attributed to the words "inquiry" and "trial" as used under the section 319 C.r.PC referred to the following cases.
1. Raghubans Dubey v. State of Bihar AIR 1967 SC 1167.
"Once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders;
once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 15 accused is part of the proceeding initiated by his taking cognizance of an offence."
.
2. The State of Bihar v. Ram Naresh Pandey and Anr AIR 1957 SC 389 "The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration."
3. Ratilal Bhanji Mithani v. State of Maharashtra and Ors AIR 1979 SC 94 "Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it the proceedings are only an inquiry. After the framing of charge if the accused pleads not guilty, the Magistrate is ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 16 required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end."
.
For determining the issue, the Hon'ble Apex Court also referred to the Section 2 (g) of Cr.PC defining INQUIRY as follows:
"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court."
The Hon'ble Supreme Court after referring to Section 2 (g) of Cr.PC and the case laws held that the word 'inquiry' is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial and at the time of filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) Cr.P.C. can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the process into ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 17 motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a .
judicial application of mind. The Hon'ble Apex Court also opined that the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies.
This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 18 and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.
.
11. In Hardeep Singh's case (supra), the Hon'ble Court framed followings questions for its consideration :
1. What is the stage at which power under Section 319 of Cr.P.C. can be exercised? and 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?
2. 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?
3. What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 19 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?
4. Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR, but not charge sheeted or who have been discharged?
12. Hon'ble Apex Court having taken note of various judgments passed on different occasions answered the aforesaid questions in following manners:
1. 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 ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 20 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.
2. 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 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.
3. 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 ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 21 ?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.
4. 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.
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 2213. Careful perusal of aforesaid judgment reveals that Hon'ble Apex Court while holding that trial commences after .
framing of charge held /ruled that inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 and Section 398 Cr.PC are species of the inquiry contemplated by Section 319 Cr.P.C, meaning thereby material 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. It also emerges from the aforesaid judgment passed by the Hon'ble Apex Court that under Section 319 Cr.PC, 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 is to commence from the stage of taking of cognizance and the Court needs not wait for the evidence against the accused proposed to be summoned, to be tested by cross-examination. Most importantly, it has been held in the aforesaid judgment that though under Section 319(4)(b) Cr.P.C.
the accused subsequently impleaded is to be treated as if he had ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 23 been an accused when the Court initially took cognizance of the offence, but the degree of satisfaction required for summoning a .
person under Section 319 Cr.P.C. would be the same as for framing a charge, meaning thereby, trial court while considering summoning of a person as an additional accused while exercising power under Section 319 Cr.PC is only required to infer prima-facie case, if any, against him on the basis of evidence adduced on record. A person not named in the FIR or a person though named in the FIR but not chargesheeted or a person who has been discharged can also be summoned under Section 319 Cr.P.C as has been ruled in the aforesaid judgment; provided it clearly emerges from the evidence that such person can be tried along with the accused already facing trial. An accused, who stands discharged cannot be summoned afresh unless requirement of Section 300 and 398 Cr.PC is not complied with. Careful reading of aforesaid judgment makes it abundant clear that Section 319 Cr.PC can be invoked for arraigning any person as an accused not named in the FIR or named in the FIR, but not charge sheeted before the stage of framing of charge by the court.
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 2414. No doubt, applying the aforesaid test/analogy/law laid down by the Hon'ble Apex Court, petitioner herein, who was .
originally named in the FIR, but not charge sheeted could have been summoned by the court below as an accused while exercising power under Section 319 Cr.PC provided it was satisfied that prima-facie case is made out against the petitioner on the basis of evidence available on record. However, in the case at hand, question which falls for consideration of this Court is that "whether court below could have entertained application under "Section 319 Cr.PC after the death of sole accused, especially when criminal case bearing 101/2 of 2011 stood abated on account of death of sole accused."
15. At this stage, at the cost of repetition, it may be noticed that though petitioner herein was named in the FIR, but fact remains that he was not charge sheeted. Non-inclusion of the present petitioner as an accused was never objected by the respondent-complainant, who after passing of order dated 20.4.2012, on which date, learned JMIC Nalagarh took cognizance, allowed the trial to proceed against the sole accused Hem Chand for good four years i.e. whereafter an application under Section 319 ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 25 after the death of the sole accused came to be filed, seeking therein summoning of present petitioner as an additional accused .
in criminal Case No. 101/2 of 2011.
16. Delay, if any, in filing application on the part of the respondent to summon the petitioner as an accused in criminal case No. 101/2 of 2011 may not have much relevance in view of the categorical finding recorded by the Hon'ble Apex Court in Hardeep Singh's Case supra that Section 319 Cr.PC can be invoked for arraigning any person as an accused not named in FIR or named in the FIR but not charge sheeted at any stage of the trial.
But in the instant case, where admittedly application under Section 319 Cr.PC, seeking therein summoning of the petitioner as an additional accused in the criminal case came to be filed after death of sole accused Hem Chand, there appears to be considerable force in the argument advanced by Mr. Arjun Lal, learned counsel for the petitioner that since on account of death of sole accused criminal case as referred herein above, stood abated, court below had become functus officio and in no situation, it could have entertained the application filed under Section 319 Cr.PC. Argument advanced by Mr. Feroz Khan, learned ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 26 counsel representing respondent No.2 that since factum with regard to death of the sole accused was not in the knowledge of .
the respondent complainant and application under Section 319 Cr.PC was filed much prior to placing of death certificate on record, court below rightly entertained the application, though appears to be attractive, but same deserves outright rejection being devoid of any merits. Factum with regard to death of sole accused Hem Chand on 13.3.2017 is not in dispute, rather record of court below clearly reveals that on 13.6.2017, learned counsel for the accused apprised the court below with regard to death of the sole accused Hem Chand, whereafter matter was adjourned to 5.7.2017, enabling the SHO Nalagarh to place on record death certificate of accused Hem Chand.
17. It is not understood that once factum with regard to death of sole accused in the criminal case was in the knowledge of the court below how it proceeded to hear the application filed by respondent No.2 under Section 319 Cr.PC on 5.7.2017. No doubt, till 7.9.2017, death certificate of accused was not on record, but as has been recorded herein above that factum with regard to death of the accused had come to the notice of the court on 13.6.2017 ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 27 and as such, it ought not have proceeded to hear and decide the application, if any, filed under Section 319 Cr.PC by the respondent .
before deciding the issue of abatement of the criminal trial if any, on account of death of the sole accused. As has been taken note in the earlier part of the judgment that though there is no mention with regard to fling of application under Section 319 Cr.PC by the respondent-complainant, prior to passing of order dated 5.7.2017, but definitely endorsement (page 315) given on the aforesaid application by the learned presiding Judge reveals that on 20.5.2017, application was presented and it was ordered to be listed on 13.6.2017, but interestingly, perusal of order dated 13.6.2017, nowhere talks about filing /pendency of the application, if any, under Section 319 Cr.PC and suddenly. on 5.7.2017, learned court below while adjourning the matter for filing of death certificate, records in the order that consideration held and matter to come up for order on 3.8.2017. On 3.8.2017, court below granted time to SHO PS Nalagarh to furnish death certificate and listed the application filed by respondent No.2 under Section 319 Cr.PC for re-
consideration on 7.9.2017. On 7.9.2017, in the pre-lunch session, court below takes on record the death certificate of Hem Chand ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 28 sole accused, but without deciding the issue with regard to abatement of criminal proceedings on account of death of the .
sole accused Hem Chand, proceeded to decide the application under Section 319 Cr.PC in the post-lunch session. Even if submission having been made by the learned counsel for respondent No.2 is accepted that factum with regard to death of the sole accused was not in their knowledge at the time of filing of application under Section 319 Cr.PC, that will not make much difference because as has been noticed herein above, factum with regard to death of the accused, which subsequently, came to be verified in the shape of death certificate placed on record was very much in the knowledge of the court below on 13.6.2017 on which date, application filed by respondent No.2 under Section 319 Cr.PC was not even listed for consideration. Consideration, if any, on the application was held for the first time on 5.7.2017.
18. The Judgment rendered by the Hon'ble Apex Court in Hardeep Singh's case supra, wherein it has taken into consideration its various earlier judgments suggests that person not named in the FIR or named in the FIR , but not charge sheeted can be summoned as an additional accused at any stage of trial. It also emerges from ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 29 the aforesaid judgment that even if main accused dies, trial does not abate qua the other accused, meaning thereby, that if main .
accused dies trial can still proceed against other accused, but in the present case, facts are altogether different, wherein petitioner ordered to be summoned as an additional accused by way of impugned order was never arraigned as an accused in the criminal trial bearing 101/2 of 2011 initiated at the behest of the complainant, rather trial only commenced against the sole accused, who was though initially charged under Sections 467, 568, 471 and 420 IPC., but subsequently charges under Sections 467, 568 and 471 were dropped against him and before his death, he was being tried for having committed offence punishable under Section 420 of IPC only.
19. Though submission made by learned counsel for respondent No.2 that trial of case does not automatically abate on the death of the accused has no merit and deserves outright rejection but even otherwise court below in whose knowledge factum with regard to death of the sole accused had come much prior to the consideration of application under Section 319 Cr.PC ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 30 ought to have decided the issue of abatement of criminal case on account of death of sole accused at the first instance.
.
20. In support of his aforesaid contention learned counsel placed reliance upon the judgment rendered by the Hon'ble Apex Court in Shashi Kant Singh v. Tarkeshwar Singh and Ors., 2002 5 SCC 738, but having carefully perused aforesaid judgment, this Court finds that facts of that case were altogether different. In the case before the Hon'ble Apex Court, during the pendency of the trial of an accused, another person was summoned by the trial Court under Section 319 Cr.PC but by the time he could be brought before the Court, trial against the accused was over. Hon'ble Apex Court held that the words "should be tried together with the accused" were merely directory and as such, a person can be tried even after conclusion of trial of the main accused. However, in the case at hand, petitioner, who has been ordered to be summoned as additional accused by way of impugned order was not an accused with the main accused at the time of filing of the application and an application under Section 319 Cr.PC, seeking summoning of the petitioner was filed after the death of the sole accused.
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 3121. In the case at hand, question before the court below at the time of deciding the application under Section 319 Cr.PC .
was not that whether petitioner can/should be tried with the main accused or he can be tried as an accused even after death of the sole accused, who was named in charge sheet, rather question before the court below was that whether application under Section 319 Cr.PC filed after death of the sole accused can be entertained or it had become functus officio on account of death of the sole accused.
22. Similarly this Court finds that judgment rendered by the Hon'ble Apex Court in Rajendra Singh v. State of UP and Ors., AIR 2007 SCC 378, has no application in the present case because in that case, Hon'ble Apex Court while interpreting the provisions contained under Section 319(1) Cr.PC has held that the words as contained under Section 319 Cr.PC are plain and the meaning clear. The Hon'ble Apex Court in the aforesaid judgment has held that when in the course of the inquiry or trial, it appears to the court from the evidence that a person, not arraigned as an accused, appears to have committed offence for which that person can/could be tried together with an accused, the court may ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 32 proceed against that person. Hon'ble Apex Court has further held that while exercising power under Section 319 Cr.PC, it must surely .
appear to the court from the evidence that someone not arrayed as an accused appears to have committed offence, but at that stage, court needs not to be satisfied that he has committed an offence. It need only appear to court that someone else has committed offence, to exercise jurisdiction under Section 319 of CrPC. In an unambiguous term, the Hon'ble Apex Court in the aforesaid judgment has held that Section 319 Cr.PC only gives power to the court to ensure that all those apparently involved in the commission of an offence are tried together and none is left out. But as has been taken note herein above, in the case at hand, question is/was not with regard to trial of the accused with other accused together, rather question is/was before the court below whether it can/could entertain application under Section 319 Cr.PC filed by the respondent complainant, seeking therein summoning of the petitioner as an additional accused in the criminal case pending adjudication against the sole accused, who has died before such application under Section 319 could be entertained and decided.
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 3323. Similarly, in case titled The State v. Nirmala and others decided on 13.9.2017 in Criminal Appeal Nos. 1647-1650 of 2017, the .
Hon'ble Apex Court has held that death of the main accused does not result in abatement of trial. True it is that death of main accused does not result in abatement of trial, but aforesaid finding/observation made by the Hon'ble Apex Court is/was relevant in the background of the case, which was listed before the Apex court, wherein admittedly there were other accused alongwith the main accused. In the aforesaid case, all the accused were discharged by the learned trial Court on account of death of the main accused. High Court also dismissed the revision petition having been filed by the affected party on the ground that death of the main accused has resulted in the abatement of the trial. In the aforesaid background, Hon'ble Apex Court observed/ruled that death of the main accused does not result in the abatement of the trial, however, in the instant case, accused Hem Chand was the sole accused in the trial pending adjudication before the court below and at no point of time, the petitioner, who has been ordered to be summoned as an additional accused was ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 34 a party and as such, aforesaid judgment has no application to the present case.
.
24. Careful perusal of judgment rendered by the Hon'ble Apex Court in Hardeep Singh's case (supra) suggests that power under Section 319 (1) Cr.PC can be exercised at any time after filing of charge sheet and before pronouncement of the judgment. In the present case, summoning order against the petitioner herein has been admittedly passed after abatement of the criminal proceedings, those were initially initiated against the sole accused late Hem Chand. Otherwise also, careful perusal of Section 319 (4) Cr.PC clearly reveals that new person is to be tried together with the accused and definitely, provisions contained under Section 319(1) Cr.PC are to be read alongwith provisions contained under Section 319 (1) CrPC. But in the present case, though application seeking summoning of the petitioner as an additional accused was filed prior to placing on record factum with regard to death of the sole accused late Hem Chand but fact remains that aforesaid application under Section 319 Cr.PC, came to be considered and decided after placing of death certificate of sole accused on record. Recently the Hon'ble Apex Court in case titled Sukhpal ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 35 Singh Khaira v. State of Punjab (2019) 6 SCC 638 had an occasion to deal with almost similar proposition, wherein the Hon'ble Apex court .
having noticed that certain aspects not being clear from the decided cases including a five Judge Bench decision in Hardeep Singh case, framed following substantial questions of law and referred the same to the larger Bench:-
"1.Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
II. Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
III. What are the guidelines that the competent court must follow while exercising power under Section 319 Cr.P.C?::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 36
25. Precisely, the facts before the Hon'ble Apex court in the aforesaid case were that FIR was lodged against eleven .
accused for having committed offence punishable under Sections 21, 24, 25, 27, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substance Act, 1985, Section 25A of the Arms Act and Section 66 of the Information Technology Act, 2000. Initially, under the 1st charge sheet, ten accused were summoned and put to trial in Sessions Case. Even though a second charge sheet was filed by the police, but same did not name the accused-appellant before the Hon'ble Apex Court. Subsequently, prosecution filed an application under Section 311 Cr.PC, for recalling certain prosecution witnesses and on such recall of the aforesaid witnesses, some of the witnesses named the applicant/accused before the Hon'ble Apex Court, whereafter prosecution filed application under Section 319 CrPC for summoning additional five accused including the appellant accused before the Hon'ble Supreme Court by placing reliance on the statements of some of the prosecution witnesses. Sessions Court pronounced the judgment in Session case as referred in above, convicting the nine other accused put on trial, but on the same day, by way of separate order, allowed the application filed under ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 37 Section 319 Cr.PC and summoned the appellant-accused. Being aggrieved with the summoning by Sessions Judge, appellant filed .
criminal revision petition in the High Court, which came to be dismissed. Aggrieved by the aforesaid order of dismissal passed by the Punjab and Haryana High Court, appellant-accused approached the Hon'ble Supreme Court, who formulated two questions for its consideration:-
"I. Whether the order of the Sessions Judge summoning the appellants herein as additional accused was in breach of Section 319, CrPC?
II. If the answer to the above question is in the affirmative, could the order of the courts below still be sustained under the Code?"
26. Hon'ble Supreme Court having taken note of the provision contained under Section 319 Cr.PC as well as various judgments rendered by it from time to time, held that since certain aspects are not clear from the decided cases, certain substantial questions arise for further consideration and accordingly, after framing of substantial questions of law as have been reproduced herein above, referred the matter to the Hon'ble the Chief Justice ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 38 for constitution of a Bench for considering the aforesaid questions. it would be apt to take note of following paras of judgment passed in .
Sukhpal Singh Khaira's case, which reads as under:
"19. Subsequently, this Court in the aforesaid matter of Hardeep Singh's Case (supra) laid down the scope and extent of the powers of the Court in the criminal justice system to array any person as an accused during the course of trial as per Section 319 Cr.P.C. The questions which were reformulated by the larger Bench were :
(i) What is the stage at which power Under Section 319 of the Code of Criminal Procedure, 1973 can be exercised?
(ii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 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?
(iii) Whether the word "evidence" used in Section 319(1) of the Code of Criminal Procedure, 1973 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?
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 39(iv) What is the nature of the satisfaction required to invoke the power Under Section 319 of the Code of .
Criminal Procedure to arraign an accused? Whether the power Under Section 319(1) of the Code of Criminal Procedure, 1973 can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
(v) Does the power Under Section 319 of the Code of Criminal Procedure, 1973 extend to persons not named in the FIR or named in the FIR but not charged r or who have been discharged.?" (emphasis supplied)
20. We note that the difference of formulation in the reference questions and the final order of the Constitution Bench with respect to the Question no. 1, makes a difference with regard to the present case. It is precisely the gap, between the restricted re formulation of the 'Question no. 1' by the Constitution Bench and the 'Question no. 1' in the reference order of the Hardeep Singh Case, which these unique facts fit into. The earlier 'Question no.1' in the reference Order was broader in comparison to the 'Reformulated Question no. 1' by the Constitution Bench. It is this marginal area which is a subsilentio, that needs to be referred to a larger Bench again.
21. In the Hardeep Singh Case (supra), the Constitution Bench set out to answer the questions referred above. In this part we are mostly concerned with the first question. The ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 40 Court, while assessing the ambit of the term 'trial', was concerned with the stage during which the power .
under Section 319 of CrPC could be exercised, in this regard, it was held "Since after the filing of the chargesheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) Code of Criminal Procedure can be exercised at any time after the chargesheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Code of Criminal Procedure, committal etc., which is only a pretrial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind." (emphasis supplied)
22. It was contended that the question of law herein is unique to the present case, and the earlier judgment of Hardeep Singh (supra) did not have an opportunity to cast any light about the validity of summoning orders pronounced after the passing of the judgment. They further argued that, the Hardeep Singh Case (supra), treats Section 319 in an isolated manner without taking into consideration the spirit and the mandate of the Code.
23. To strengthen the aforesaid submission, the State further contended that Section 465, Cr.P.C was introduced to provide for a balanced mechanism under the Criminal Justice System and to stop the Courts from getting into hyper ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 41 technicalities and committing serious violations. This Court in Hardeep Singh Case (supra) has not considered the above .
principles or the issues which could possibly arise before the trial court while dealing with applications under Section 319, Cr.P.C. The State therefore submitted that, Section 319, Cr.P.C. should not be treated as an isolated island and should instead be given a pragmatic interpretation by keeping in view the entire mandate of the Code to render complete justice.
24. Furthermore, it needs to be determined whether the trial is said to be fully concluded even if the bifurcated trial in respect of the absconded accused is still pending consideration.
25. The appellant herein contended that, the observations made in the Hardeep Singh Case (supra), cannot be diluted by a Bench of this strength. We have considered the averments made by the counsel on behalf of both parties, we feel that it would be appropriate to place the same for consideration before a larger Bench. However, we are of the considered opinion that, power under Section 319, Cr.P.C being extraordinary in nature, the trial courts should be cautious while summoning accused to avoid complexities and to ensure fair trial. We must remind ourselves that, timely disposal of the matters furthers the interest of justice.
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 4226. After pursuing the relevant facts and circumstances, the following substantial questions of law arise for further .
consideration
26.I. Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other coaccused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
26.II. Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
26.III. What are the guidelines that the competent court must follow while exercising power under Section 319 Cr.P.C?
27. In light of the same, we direct the Registry to place these matters before Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength for considering the aforesaid questions."
27. Careful perusal of aforesaid judgment rendered by the Hon'ble Apex Court reveals that Hon'ble Apex Court having taken note of its various judgments, especially judgment rendered in ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 43 Hardeep Singh's case arrived at a conclusion that it has not considered the issue, as has been taken note herein above, which .
could possibly arise before the court below while dealing with the application under Section 319 Cr.PC.
28. In the instant case, this Court is of the view that in terms of provisions contained under Section 394 Cr.PC, criminal proceedings pending against the sole accused late Hem Chand stood abated on account of the death of the sole accused and learned trial court below had no authority /jurisdiction to entertain application, if any, filed on behalf of respondent No.2 under Section 319 Cr.PC, especially when it had become functus officio. Careful perusal of latest judgment rendered by the Hon'ble Apex Court in Sukhpal Singh Khaira's case suggests that trial court in terms of judgment rendered by the Hon'ble Supreme Court in Hardeep Singh's case could not have entertained application under Section 319 Cr.PC after the death of sole accused.
29. Though this Court is of the definite view that trial court ought not have entertained application under Section 319 Cr.PC after abatement of criminal proceedings on account of death of sole accused Hem Chand, but even otherwise, impugned order ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 44 summoning petitioner herein as an additional accused cannot be said to be legal, especially when no notice ever came to be issued .
to the petitioner herein before summoning him as an additional accused in terms of provisions under Section 319 Cr.PC. Though learned counsel for respondent No.2 while placing reliance upon judgment rendered by the Hon'ble Apex Court in Hardeep Singh's case made a serious attempt to pursued this Court to agree with his contention that no notice is/was required to be issued to the person sought to be arrayed as an additional accused under Section 3 19 Cr.PC, but careful perusal of judgment rendered by the Apex Court in Hardeep Singh's case nowhere suggests that no notice to the persons sought to be arrayed as an additional accused is required to be issued before summoning him as an additional accused. Constitution Bench in Hardeep Singh's case (supra) has held that the standard of proof employed for summoning a person as an accused under Section 319 Cr.PC is higher than the standard of proof employed for framing a charge against an accused. Therefore, it is necessary for the court to arrive at a satisfaction that the evidence adduced on behalf of the ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 45 prosecution, if unrebutted, may lead to the conviction of a person sought to be added as an accused in the case.
.
30. The Hon'ble Apex Court in case titled Jogendra Pal Yadav and Ors v. State of Bihar and Anr., 2015 (9) SCC 244, has held that an accused since inception is not necessarily heard before he is added an accused, however, a person who is added as an accused under Section 319 Cr.PC is necessarily heard before being so added. Though in the aforesaid case, question before the Hon'ble Apex Court was that whether a person, who is added as an accused under Section 319 Cr.PC, can seek discharge under Section 227 Cr.PC or not?, but the Hon'ble Apex Court while discussing various aspects of the matter observed that a person who is added as an accused under Section 319 Cr.PC is necessarily heard before being so added. In the case at hand, it is not in dispute inter-se parties, rather quite apparent from the impugned order passed by the court that no opportunity, if any, was afforded to the petitioner herein before summoning him as an accused.
Paras 8 and 9 of the aforesaid judgment are reproduced herein below:-
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 46"8. It is apparent that both these provisions, in essence, have the opposite effect. The power under Section 319 of the .
Cr.P.C. results in the summoning and consequent commencement of the proceedings against a person who was hitherto not an accused and the power under Section 227 of the Cr.P.C., results in termination of proceedings against the person who is an accused.
9. It was, however, urged by learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 of the Cr.P.C., the only qualification necessary is that the person should be accused. Learned counsel submitted that there is no difference between an accused since inception and accused who has been added as such under Section 319 of the Cr.P.C. It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 of the Cr.P.C., is necessarily heard before being so added. Often he gets a further hearing if he challenges the summoning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 of the Cr.P.C., can be exercised only if very ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 47 strong and cogent evidence occurs against a person from the evidence led before the Court."
.
31. Another argument raised by Mr. Khan, learned counsel representing respondent No.2-complainant that present petition filed under Section 482, is not maintainable, especially when alternative remedy under Section 397 Cr.PC is/was available, is not sustainable. Learned counsel contended that order impugned before this Court being not interlocutory ought to have been laid challenge by way of criminal revision under Section 397 Cr.PC., however, his aforesaid plea deserves to be negated in light of judgment rendered by the Hon'ble Apex Court in case titled Vijay and Anr v. State of Maharashtra and Anr., (2017) 13 Supreme Court Cases 317, wherein Hon'ble Apex Court has held that mere availability of alternative remedy cannot be a ground to disentitle relief under Section 482 Cr.PC. The relevant paras of the aforesaid judgment are reproduced herein below:
"After hearing the counsel and also after perusing the impugned order, we are of the considered opinion that the order of the High Court has no legs to stand in view of the law laid down by this court in Prabhu Chawla. In the above ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 48 referred case, in view of the divergent opinions of this Court in Dhariwal Tobacco Products Ltd. and Mohit v. State of U.P., .
the matter was placed before the three-Judge Bench of this Court. The three-Judge Bench took the view that Section 482 CrPC begins with a non obstante clause to state:
"482. Saving of inherent powers of High Court.-
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends r of justice."
As Section 397 Cr.PC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.PC only to petty interlocutory orders! A situation which is wholly unwarranted and undesirable. The three-Judge Bench has confirmed the law laid down by this Court in Dhariwal Tobacco Products Ltd.
8. In view of the above settled law, mere availability of alternative remedy cannot be a ground to disentitle the relief under Section 482 Cr.PC and, apart from this, we feel that the learned Judge without appreciating any of the factual and legal position, in a mechanical way, passed the impugned order, which warrants interference by this court. Accordingly, the order of the High Court is set aside and the matter is remanded to the High Court for reconsideration in the light of the settled legal position.
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 499. The appeal is disposed of accordingly."
.
Reliance is also placed on cases titled Prabhu Chawla v. State of Rajasthan, 2016 (16) SCC 30 and Girish Kumar Suneja v.Central Bureau of Investigation, 2017 (14) SCC 809.
32. Submission made by learned counsel for respondent No.2 that since suit for recovery qua the transaction, which is subject matter of the present case, stands decreed in favour of respondent No.2 vide judgment dated 27.5.2016, it can be safely concluded that petitioner herein actively participated in the transaction inter-se respondent No.2 and his late father Hem Chand and as such, no fault, if any, can be found in the impugned order summoning petitioner herein as an additional accused, is totally misconceived and irrelevant as far as petition at hand is concerned. In the instant case, this Court is/was to determine whether application under Section 319 Cr.PC, seeking summoning of the petitioner herein as an additional accused could have been entertained by the court below after the abatement of criminal proceedings initiated against the sole accused Hem Chand and as such, decree, if any, passed against the petitioner herein in civil suit ::: Downloaded on - 10/01/2020 20:25:14 :::HCHP 50 filed by respondent No.2 is not of much relevance as far as present proceedings are concerned.
.
33. Consequently, in view of the detailed discussion made herein above as well as law relied upon, this Court has no hesitation to conclude that court below while allowing application under Section 319 Cr.PC summoning the petitioner as an additional accused has exceeded its jurisdiction and such, present petition is allowed and impugned order dated 7.9.2017, passed by the learned ACJM Nalagarh in Case No. 101/2 of 2011 is quashed and set-aside.
The present petition stands disposed of, so also pending application(s) if any.
7th January, 2020 (Sandeep Sharma),
manjit Judge
::: Downloaded on - 10/01/2020 20:25:14 :::HCHP