Punjab-Haryana High Court
Ved Parkash And Ors vs State Of Haryana on 10 September, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
CRR-2929-2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 10.09.2014
1. CRR-2929-2010 (O & M)
Ved Parkash and others
... Petitioner(s)
Versus
State of Haryana
... Respondent(s)
AND
2. CRR-48 of 2011 (O & M)
Narender Yadav
... Petitioner(s)
Versus
State of Haryana and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. Baldev Singh, Sr. Advocate with
Mr. Anhul Singh, Advocate for
the petitioners in CRR-2929-2010 and for
respondents no.2 to 5 in CRR-48-2011.
Mr. Pankaj Jain, Advocate for
the petitioner in CRR-48-2011.
Mr. Supreet Ghuman, DAG, Haryana.
PARVEEN KUMAR
2014.09.16 15:52
I attest to the accuracy and
integrity of this document
-2-
CRR-2929-2010
Paramjeet Singh, J.
By this common judgment, I intend to dispose of CRR- 2929-2010, titled 'Ved Parkash and others vs. State of Haryana' and CRR-48 of 2011, titled 'Narender Yadav vs. State of Haryana and others', as these revisions have arisen from the order dated 30.09.2010 passed by learned Additional Sessions Judge, Gurgaon. By the impugned order, respondents no.2 to 5 in CRR-48-2011 have been discharged whereas petitioners in CRR-2929-2010 along with one Anil have been summoned under Section 319 Cr.P.C. to face trial along with co-accused, who are already facing trial, for commission of offences punishable under Sections 323, 324, 452, 307 read with Section 34 and 506 of the Indian Penal Code in FIR No.63 dated 06.04.2010, registered at Police Station Badshahpur.
For convenience, facts are being taken from CRR-2929- 2010, titled, 'Ved Parkash and others vs. State of Haryana'.
I have heard learned counsel for the petitioners and perused the record.
Learned senior counsel for the petitioners in CRR-2929- 2010 and for respondents no.2 to 5 in CRR-48-2011 has contended that Narender Yadav(petitioner in CRR-48-2011) has got registered FIR No.63 dated 06.04.2010, registered at Police Station Badshahpur, under Sections 323, 324, 452, 506 and 307 read with Section 34 of the Indian Penal Code. The matter was thoroughly investigated by the police and the petitioners were found innocent. Learned counsel further contended PARVEEN KUMAR 2014.09.16 15:52 I attest to the accuracy and integrity of this document -3- CRR-2929-2010 that no specific role or injury has been attributed to the petitioners. The impugned order passed by the trial Court summoning the petitioners under Section 319 Cr.P.C. is result of non-application of mind.
Per contra, learned State counsel vehemently opposed the contentions raised by learned counsel for the petitioners in CRR-2929- 2010 and supported the impugned order.
Learned counsel the petitioner in CRR-48-2011 has contended that there are specific allegations in FIR as well as in the statement of petitioner recorded in Court against respondents no.2 to 5 (in CRR-48-2011), who being members of an unlawful assembly entered in the house of the petitioner with common object of committing the offence. Respondent no.2-Sonu has been attributed a specific role of having caused injuries to petitioner-Narender Yadav (complainant) with lathi on the backside of his knees. There are specific evidence with regard to involvement of respondents no.2 to 5 in the commission of offence and they are liable to be summoned accordingly.
I have considered the contentions of learned counsel for the petitioners.
It has been held by the Hon'ble Apex Court in Suman Vs. State of Rajasthan and another, (2010) 1 Supreme Court Cases 250 as under:-
"A reading of the plain language of Section 319(1) Cr.P.C. makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of PARVEEN KUMAR 2014.09.16 15:52 I attest to the accuracy and integrity of this document -4- CRR-2929-2010 an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of Section 319(1) Cr.P.C. from which it can be inferred that a person who is named in the FIR or complaint but against whom charge sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offence for which he could be tried together with the other accused.
The process issued against the appellant under Section 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her. A person who is named in the FIR or complaint with the allegation that he/she has committed any particular 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 CrPC if from the evidence collected/produced in the course of any inquiry into or 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.
The Magistrate had objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C. for taking cognizance against the appellant. The issue of summons against the appellant was not an abuse of the process of the court."
In Hardeep Singh vs. State of Punjab and others 2014 (1) PARVEEN KUMAR 2014.09.16 15:52 I attest to the accuracy and integrity of this document -5- CRR-2929-2010 RCR (Criminal) 623 while dealing with power of Court to summon a person as additional accused, a five-Judge Bench of the Hon'ble Apex Court has held as under:
"110. We accordingly sum up our conclusions as follows:
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 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 PARVEEN KUMAR 2014.09.16 15:52 I attest to the accuracy and integrity of this document -6- CRR-2929-2010 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 chargesheet. 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. Question No. II 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 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.
Question No. IV 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 PARVEEN KUMAR 2014.09.16 15:52 I attest to the accuracy and integrity of this document -7- CRR-2929-2010 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 chargesheeted 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."
Section 319 reads as under:-
"Power to proceed against other persons appearing PARVEEN KUMAR 2014.09.16 15:52 I attest to the accuracy and integrity of this document -8- CRR-2929-2010 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 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.
Perusal of complaint which is basis of registration of the FIR in this case as well as statement of complainant-Narender (PW 1) on oath recorded before the trial Court reveals that there are specific allegations against Ved Parkash, Sat Parkash and Sonu son of Ved Parkash. There are specific allegations that Ved Parkash gave a kulhari blow on the head of the Dharmender, Sat Parkash gave an iron rod blow on the head of complainant and Sonu son of Ved Parkash caused injuries on the back of knees of complainant with lathi. Injured-Dharmender in PARVEEN KUMAR 2014.09.16 15:52 I attest to the accuracy and integrity of this document -9- CRR-2929-2010 his statement recorded under Section 161 Cr.P.C. attributed specific role to Rakesh is to the effect that he gave blow with iron rod. The complainant (PW 1) supported the version of injured-Dharmender on this point. The complainant has specifically attributed the role played by the petitioners (in CRR-2929-2010) and respondent no.2 (in CRR-48- 2011). There was sufficient material before the trial Court to summon the petitioners (in CRR-2929-2010) to face the trial as additional accused, however, it committed an error in law in not summoning respondent no.2-Sonu in CRR-48-2011.
In view of above discussion, learned counsel for petitioners (in CRR-2929-2010) could not point out any illegality in the impugned order. Hence, CRR-2929-2010 is dismissed being devoid of merits.
So far as CRR-48-2011 is concerned, there is specific attribution to respondent no.2-Sonu by the complainant in the complaint as well as in his statement under Section 161 Cr.P.C. However, there are no specific allegations against respondents no.3 to 5. Hence, CRR-48- 2011 is partly allowed only qua respondent no.2-Sonu, however, dismissed qua respondents no.3 to 5. Respondent no.2 is ordered to be summoned to stand trial along with accused challaned by the police for the commission of offence punishable under Sections 323, 324, 452, 307 read with Section 34 and 506 of the Indian Penal Code.
CRR-48-2011 is disposed of in the aforementioned terms.
10.09.2014 (Paramjeet Singh)
parveen kumar Judge
PARVEEN KUMAR
2014.09.16 15:52
I attest to the accuracy and
integrity of this document