Punjab-Haryana High Court
Chander Parkash vs State Of Haryana And Another on 29 May, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Crl.Rev.No.1626 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Rev.No.1626 of 2012 (O&M)
Date of decision : 29.5.2012
Chander Parkash .......Petitioner
Vs.
State of Haryana and another ....Respondents
....
CORAM : HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK **** Present : Mr. Surinder Gandhi, Advocate for the petitioner.
...
RAMESHWAR SINGH MALIK, J Crl.Misc.No.32651 of 2012 Application is allowed subject to just exceptions.
Crl.Misc. Application stands disposed of.
Crl.Rev.No.1626 of 2012 The present petition is directed against the order dated 3.4.2012 passed by the learned Additional Sessions Judge-III, Bhiwani, whereby the revision petition filed by respondent no.2 was accepted and the order dated 1.6.2011 passed by the learned JMIC, Bhiwani, summoning respondent no.2 under Section 319 Cr.P.C., was set aside.
The facts necessary for disposal of the instant petition, when put into a narrow compass are that the petitioner put the criminal law into motion, while getting Crl.Rev.No.1626 of 2012 2 FIR No.38 dated 23.2.2010 recorded under Sections 448/427/34 Indian Penal Code (IPC) (Annexure P-2) registered at Police Station Civil Lines, Bhiwani. After conclusion of the investigation, report under Section 173 of the Code of Criminal Procedure (for short `Cr.P.C.') was filed only against Manoj and Sandeep, whereas respondent no.2 herein, namely; Mohan Lal was declared innocent. During the course of trial, application under Section 319 Cr.P.C. was moved by the petitioner vide Annexure P-4, primarily on the basis of his own statement having been got recorded as PW-2 (Annexure P-3).
The learned trial court vide order dated 1.6.2011 accepted the application under Section 319 Cr.P.C. and ordered the summoning of respondent no.2. The relevant part of the order dated 1.6.2011 passed by the learned trial court, summoning respondent no.2 reads as under :-
" A perusal of the case file reveals that while evidence was recorded in the present case, PW-2 implicated the above named person to the effect that he has also committed alleged offences. The scope of Section 319 was considered by Hon'ble Supreme Court in case titled as Suman V. State of Rajasthan and another, 2009(4) RCR (Criminal) 908. In paragraph 15, the Hon'ble Apex Court observed as under :-
"a person is named in the first information report or complaint with the allegations that he/she has committed any particular Crl.Rev.No.1626 of 2012 3 crime or offence, but against whom the police does not launch prosecution or files charge sheet or drops the case, can be proceeded against under Section 319 Cr.P.C., if from the evidence collected/produced in the course of any inquiry into the trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused."
In view of the facts and circumstances of the case as well as the law laid down by the Hon'ble Apex Court of India, said Mohan Lal is also summoned in the present case to face trial alongwith co- accused, for committing offence under Sections 448 and 427 read with Section 34 IPC for 11.7.2011."
Dis-satisfied with the above said order dated 1.6.2011 passed by the learned trial court, respondent no.2 Mohan Lal filed revision petition vide Annexure P-6 before the learned Additional Sessions Judge, which came to be allowed vide impugned order dated 3.4.2012 (Annexure P-7).
Feeling aggrieved against the impugned order dated 3.4.2012 passed by the learned Additional Sessions Judge, the petitioner has approached this court by way of instant petition.
Learned counsel for the petitioner vehemently contended that the learned Additional Sessions Judge has exceeded his jurisdiction, while accepting the revision Crl.Rev.No.1626 of 2012 4 filed by respondent no.2 because the order dated 1.6.2011 (Annexure P-5) passed by the learned trial court was justified on facts as well as in law. Learned counsel for the petitioner further submits that in view of the statement of the petitioner (Annexure P-3), sufficient material had been brought on record for summoning respondent no.2 and the learned JMIC has rightly accepted the application moved by the petitioner under Section 319 Cr.P.C. Learned counsel for the petitioner concluded by submitting that there was hardly any scope for learned Additional Sessions Judge to interfere with the order dated 1.6.2011 passed by the learned trial court because the same was duly supported by the judgement of the Hon'ble Supreme Court in Suman Vs. State of Rajasthan and another, 2009 (4) RCR (Crl.) 908 and the present petition deserves to be accepted.
I have heard the learned counsel for the petitioner and with his able assistance have gone through the record of the case.
After giving thoughtful consideration to the contentions raised and in view of the peculiar facts and circumstances of the present case, this court is of the considered opinion that the present petition is devoid of any merit. The admitted facts are that respondent no.2 was found innocent by the investigating agency. During the course of argument, learned counsel for the petitioner placed reliance only on the statement suffered by the petitioner vide Annexure P-2, to contend that it was sufficient to order summoning of respondent no.2. However, I am unable to persuade myself to accept the contention of learned counsel for the petitioner, as the same is without any Crl.Rev.No.1626 of 2012 5 force. It is a matter of common knowledge that author of the FIR would depose while appearing as prosecution witness on the similar lines, on which he has got the FIR registered. It is not the case of the petitioner that there was any other piece of evidence in addition to the self serving statement of the petitioner, available on the record of the case justifying the summoning of respondent no.2.
So far as the order dated 1.6.2011 (Annexure P-5) passed by learned JMIC, Bhiwani, is concerned, bare reading of the same would show that the learned trial court has not recorded even its prima facie satisfaction while summoning respondent no.2. There is no dispute regarding the law laid down by the Hon'ble Supreme Court in Suman's case (supra). However, in para 15 thereof, which has been relied upon by the learned trial court, the Hon'ble Supreme Court has also observed that the learned court,while summoning as an additional accused under Section 319 Cr.P.C., should be prima facie satisfied that such a person has committed the offence, for which he can be tried with other accused. Such prima facie satisfaction, which ought to have been recorded by the learned trial court, is conspicuously missing in the present case.
On the other hand, learned Additional Sessions Judge has recorded very cogent and plausible reasons while rightly following the law laid down by the Hon'ble Supreme Court of India in three referred judgements before passing the order dated 3.4.2012. The relevant part of the order dated 3.4.2012 passed by the learned Additional Sessions Judge reads as under :-
Crl.Rev.No.1626 of 2012 6
" It was argued by learned counsel for the revisionist that name of the revisionist was mentioned merely on the basis of suspicion. It was further argued by learned counsel for the revisionist that date of occurrence in the case was 22.2.2008 whereas FIR was registered on 23.2.2008. It was further argued that perusal of the statement of PW-2 does not connect the accused with the revisionist in any way. It was further argued that when the police had come on the spot as per the case of the prosecution there was hardly any occasion for registration of the case on 23.2.2008. Learned counsel for the revisionist placed reliance upon the judgement in the case of Sarjojben Ashwin Kumar Shah etc. Vs. State of Gujrat and others, 2011(3) RCR (Criminal) (SC) 852 wherein it was held that the power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence led in before the Court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.Crl.Rev.No.1626 of 2012 7
It was held by Hon'ble Apex Court in the judgement in the case of Y.Saraba Reddy Versus Puthur Rami Reddy and another, reported in 2012 (2) RCR (Criminal) (SC)1014 that power of Section 319 of the Code of Criminal Procedure 1973 is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist.
It was held by the Hon'ble Apex Court in the case of Kailash Versus State of Rajasthan and another, reported in 2008(2) RCR (Crl.) (SC 200 that discretion under Section 319 has to be exercised very sparingly and with caution and only when the court concerned is satisfied that some offence has been committed by such person. Merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion would not be used by the Court. Extraordinary power which is conferred on the Court should be used very sparingly and only if compelling reasons exist.
In the facts and circumstances of the case, this Court is satisfied that there is hardly any evidence showing the nexus between the revisionist and the co-accused and there appears to be an attempt to rope in maximum number of people from the side of the accused. Therefore, the revision petition is allowed and the Crl.Rev.No.1626 of 2012 8 impugned order is set aside."
It is the settled proposition of law that the powers under Section 319 Cr.P.C., being the discretionary and extraordinary powers, the learned courts are expected to exercise the same very sparingly and with circumspection. Further, learned court while exercising the powers under Section 319 Cr.P.C., is under legal obligation to record its prima facie satisfaction, so as to justify the summoning of an additional accused, who has earlier been found innocent by the investigating agency. A mere doubt about the involvement of a person being summoned is not sufficient until and unless it is supported by the relevant evidence available on the record of the case. No doubt, the powers under Section 319 Cr.P.C. are wide. However, simultaneously it is also the settled principle of law that more wider is the power, greater is the care and caution to be exercised by the courts, for exercising the discretionary powers.
In the present case, the learned trial court has failed to give any reason for summoning respondent no.2. It has not recorded even its prima facie satisfaction. No other evidence has been recorded or relied upon by the learned trial court, except the self serving statement of petitioner/complainant as PW-2.
Further, the revisional jurisdiction of this court is limited one. It is the settled principle of law that the revisional jurisdiction is to be exercised only when the impugned order suffers from a patent illegality or the same is without jurisdiction. However, in the present case, neither the impugned order is suffering from patent illegality nor the same is without jurisdiction. On the other hand, the impugned order Crl.Rev.No.1626 of 2012 9 passed by the learned Additional Sessions Judge is based on sound and cogent reasons. Learned counsel for the petitioner could not point out any perversity in the impugned order.
In view of the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, I unhesitatingly conclude that the present petition is bereft of any merit and must fail.
Resultantly, the order dated 3.4.2012 passed by the learned Additional Sessions Judge-III, Bhiwani, is upheld and the instant criminal revision is ordered to be dismissed.
29.5.2012 (RAMESHWAR SINGH MALIK) GS JUDGE