Punjab-Haryana High Court
Naresh vs Rampal And Others on 30 April, 2012
Crl. Rev. No.575 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Rev. No.575 of 2012 (O&M)
Date of Decision: 30.04.2012
Naresh ....Petitioner
Versus
Rampal and others ....Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Ashish Aggarwal, Advocate
for the petitioner.
Mr. H.S. Gill, Sr. Advocate
with Mr. Vivek Goel, Advocate
for respondent Nos.1 to 3.
Mr. J.S. Rattu, D.A.G., Haryana
*****
1. Whether Reporters of Local Newspapers 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 ?
**
NIRMALJIT KAUR, J.
Crl. Misc. No.24544 of 2012
This is an application under Section 482 of the Cr.P.C for permission to bring on record additional facts relating to the Revision Petition.
Crl. Misc. Application is allowed as prayed for.
Crl. Rev. No.575 of 2012 This is a revision petition against the Order and Judgment dated 10.02.2012 passed by the Judicial Magistrate Ist Class, Kaithal, vide which, the application under Section 319 of the Cr.P.C was dismissed.
While praying for setting aside the said Order and summoning Crl. Rev. No.575 of 2012 (O&M) 2 the petitioner, learned counsel for the petitioner has submitted that there are specific allegations against the respondents in the FIR, as well as, in the statements of PW-1 to PW-3. It is further pointed out that while dismissing the application, the Court below ignored the principles of Section 319 of the Cr.P.C and on account of the fact that the witnesses have not said anything about the investigation in the statements.
The first argument raised by learned counsel for the respondents while opposing the present revision petition was that the present revision petition was not maintainable as the said Order, under challenge, was passed by the Judicial Magistrate Ist Class, Kaithal, as such, the revision should have been filed under Section 397(1) and (3) of the Cr.P.C before the Court of Sessions and not before the High Court. It was further stated that earlier also, the petitioner had filed Criminal Revision No.2867 of 2011 before this Court which was disposed of vide Order dated 21.12.2011. While disposing of the same, this Court had remanded the case back to the trial Court with a direction to consider the prayer of the petitioner afresh on the basis of the evidence available on the file. The similar objection was raised before the High Court even at that stage and the High Court had duly held that the said objection was justified but, however, remanded the case back as the Court had already issued notice and the respondents stood served. Thus, the petitioner should have filed the revision petition before the Courts of Session.
Reliance has been placed on the judgment of this Court rendered in the case of M/s Anand Swarup Trehan and Sons vs. Income Tax Officer, Distt I (2) reported as 1999(1) RCR (Criminal) 341.
The argument of learned counsel for the respondents cannot be sustained in view of the provisions of Section 397(1) of the Cr.P.C. The Crl. Rev. No.575 of 2012 (O&M) 3 same reads as under :-
"397. Calling for records to exercise powers of revision.-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
Thus, the High Court and the Sessions Judge has common jurisdiction. Even as per the judgment relied upon by the learned counsel for the respondents titled as M/s Anand Swarup Trehan (supra), it was held that the High Court and the Court of Sessions have concurrent jurisdiction. The petitioner chose to file the revision petition before the High Court. Notice was taken. Reply has been filed. Moreover, it is the argument of learned counsel for the respondent himself that the prosecution evidence is complete. Thus, to remand the matter to the Session Court, at this stage, would only lead to more delay. In any case, this Court has the jurisdiction to entertain under Section 397(1) of the Cr.P.C. As such, the first argument of learned counsel for the respondents has no merit.
The second argument raised by learned counsel for the respondents was that the prosecution evidence is complete. As such, much time has passed and now a separate trial would have to commence qua the present respondents, in case, the application under Section 319 of the Cr.P.C is allowed. This argument of learned counsel for the respondents, Crl. Rev. No.575 of 2012 (O&M) 4 too, does not help in view of the judgment of Hon'ble the Apex Court rendered in the case titled as Rajendra Singh vs. State of U.P. reported as 2007(3) RCR (Criminal) 1022.
Hon'ble the Apex Court, in the said judgment, was pleased to hold the fact that trial of co-accused has been concluded and the co-accused was acquitted, cannot have the effect of nullifying or making an order under Section 319 of the Cr.P.C. Para 10 of the said judgment reads as under :-
"10. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh, 2002(3) RCR (Criminal) 191 : (2002)5 SCC 738 and it was held as under in para 9 of the report :
"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the Crl. Rev. No.575 of 2012 (O&M) 5 offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words `could be tried together with the accused' in Section 319(1), appear to be only directory. `Could be' cannot under these circumstances to be held to be `must be.' The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319 (1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."
Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.5.2005 as infructuous."
Similar view was held by Hon'ble the Apex Court in the case of Crl. Rev. No.575 of 2012 (O&M) 6 Bholu Ram vs. State of Punjab reported as 2008(4) RCR (Criminal) 187. In the said case, the objection was laid down in para 28 as under ;
"28. During trial, evidence of some of the witnesses was recorded who implicated the appellants. A Public Prosecutor, therefore, moved an application to summon the appellants and to try them along with other accused. The application was granted by the Sessions Court. The said order was challenged by the appellants."
and the same was answered in para 40 as under :-
"40. In our opinion, therefore, the learned Magistrate had power and jurisdiction to entertain applications filed by the appellant-accused under Section 319 of the Code and to issue summons to respondent No.2 by adding him as accused. The said order could not be said to be illegal, unlawful or otherwise objectionable."
Hon'ble the Apex Court in the case of Bangarayya vs. State of Karnataka reported as 2011(5) RCR (Criminal) 711 set aside the Order of the High Court that had dismissed the application under Section 319 of the Cr.P.C on the ground that the same was made after a long delay.
Similar view was also expressed by Hon'ble the Apex Court in the case of Shashikant Singh vs. Tarkeshwar Singh reported as 2002(3) RCR (Criminal) 191, where, the direction was issued to hold de novo trial against the additional accused summoned under Section 319 of the Cr.P.C.
Section 319 of the Cr.P.C reads as under :-
"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 offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence Crl. Rev. No.575 of 2012 (O&M) 7 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 witness 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."
Thus, the application under Section 319 of the Cr.P.C can be moved at any stage. Thus, the argument too also has no merit.
Even on merits, the argument of the learned counsel has some force. There are specific allegations against the respondents-Ram Pal, Sushil and Kala. In the FIR, the allegations read as under :-
" Ashok hit his wooden bat on my back towards the left side and while Ram Pal, Kala and Sanjay Kumar, Satish, Surender gave various injuries of the Sariyas and wooden Bindas in their hands to Rajneesh also."
The allegations in the FIR were supported by the statements of Naresh Kumar, Rajneesh made under Section 161 of the Cr.P.C. After the filing of the challan, PW-1 Satish Kumar appeared as witness and alleged as under :-
" Ram Pal, Kala, Sanjay sons of Krishan, Satish Crl. Rev. No.575 of 2012 (O&M) 8 and Sushil sons of Prem Chand, Pravin s/o Ramesh, Surender s/o Ram Kumar, Ashok s/o Kashmiri and Sushil s/o Babu who were carrying Sariyas (Iron rods) and wooden bats in their hands.
And Rampal, Kala, Sushil and Surender hit with wooden bindas on Naresh Kumar's legs, back and also in his face.
Ashok hit his wooden bat on my back and Ram Pal, Kala and Sanjay, Satish, Surender gave various injuries of the Sariyas and wooden Bindas in their hands to Rajneesh also.
PW-2 Naresh Kumar, while making specific allegations against the respondent-Ram Pal, Kala and Sushil stated as under :-
"Moreover, along with them, Rampal, Kala, Sushil, Ashok and Surender gave wooden bindas blows on Naresh Kumar's back, arms and face. That when I and Rajneesh tried to save Naresh Kumar from the accused, then the aforesaid accused also hit us. Accused Narender hit his sariya on my right leg and while Sushil hit me on my left arms with the wooden Binda in his hands and while Parvin hit the iron rod on my back (Kamar) and Ashok hit his wooden bat on my back and Ram Pal, Kala and Sanjay, Satish, Surender gave Sariyas and Binda blows to Rajneesh."
Similarly, PW-3 Rajnish also made specific allegations, which are as under :-
"Rampal, Kala, Sushil, Surender, Ashok and son of Sanjay's aunt's son hit Naresh Kumar with wooden sticks and bindas in their hands which hit Naresh Kumar on his legs, hands, back and mouth and when I and Satish tried to save Naresh Kumar from them then Ram Pal hit me with the Binda he was carrying in his hand on my left hand and Kala hit me with the stick on my right leg and Sanjay hit me Crl. Rev. No.575 of 2012 (O&M) 9 with iron rod on my left shoulder, Satish hit me with iron rod on right side of chest and Suresh hit me with his binda on left side of my back and Parveen Sanjay also hit with their respective weapons and in the same manner Ashok, Sushil, Narender and Parveen also hit Satish Kumar. We shouted for help "Maar Diya Maar Diya."
The said injuries are supported by Medico Legal Reports. Thus, there is sufficient evidence and specific allegations against the respondents. The State has not been able to show as on what basis, the respondents were found innocent. Naresh (petitioner) is stated to have received 7 injuries and Satish (complainant) is stated to have received 4 injuries.
It is a well settled proposition of law that an order under Section 319 Cr.P.C should not be passed only because one of the witnesses wish to implicate another person. The Courts are required to apply stringent tests; one of the tests is that the Court should come to the reasonable conclusion on the basis of evidence before it that the same is likely to lead to conviction.
In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, while considering the basic requirements of Section 319 of the Code, Court said:
"The basic requirement for invoking the above Section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertain some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the Crl. Rev. No.575 of 2012 (O&M) 10 evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused."
In Krishnappa v. State of Karnataka reported as 2004 (4) RCR (Criminal) 678, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused.
The Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388, in para 17, observed as under:-
"17. The provision of Section 319 of the Code, on a plain reading,provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.
We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined:
"...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been Crl. Rev. No.575 of 2012 (O&M) 11 taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court..."
An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person
(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction.
For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned."
On the other hand, there is also no dispute with the proposition of law laid down by Hon'ble the Supreme Court in the case of Suman vs. State of Rajasthan and another reported as 2009(4) RCR (Criminal) 908 that the Sessions Court can take cognizance against the person qua whom there is a no committal order and can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused and a person can be proceeded against under Section 319 Cr.P.C if from the evidence collected/produced in the course of any inquiry, the Court is prima facie satisfied that such person has committed offence for which he can be tried with other accused.
In the said case, of Suman (supra) as per the complainant "after one week of the marriage, her mother-in-law - Rukmani Devi and nanad - Suman (the appellant herein) told her that in the marriage, items like scooter, fridge, air-conditioner etc. have not been given and the Crl. Rev. No.575 of 2012 (O&M) 12 marriage party was not served well; that mother-in-law - Rukmani Devi and nanad - Suman forcibly took the complainant to a lady doctor and got implanted Copper-T so that she may not give birth to any child; that nanad
- Suman started instigating the husband of the complainant either on phone or otherwise and thereupon, he not only used to assault, but also humiliate and torture the complainant; that on 7.4.2002 the husband gave beating with the belan and nanad - Suman snatched her hair and forcibly removed the brings. In her statement made before the police under Section 161 Cr.P.C., respondent No.2 reiterated all the allegations. The father and mother of respondent No.2 and 4 other persons, whose statements were recorded under Section 161 Cr.P.C., clearly spelt out the role played by the appellant in harassing respondent No.2 and instigating her husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand for dowry or harass respondent No.2 because she was living with her husband, Mahendra Pal at Bikaner. In her statement recorded under Section 164 Cr.P.C., respondent No.2 again made specific allegations against the appellant. While deciding the application filed under Section 319 Cr.P.C., the learned Judicial Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani Devi and sister-in-law, Suman had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated her husband to inflict physical torture, which were supported by the statements recorded by the police under Section 161 Cr.P.C." It was, therefore, in the facts of that case, Hon'ble the Supreme Court held that the learned Judicial Magistrate has objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C.
Coming back to the present case, there are specific Crl. Rev. No.575 of 2012 (O&M) 13 allegations against the respondents-Ram Pal, Sushil and Kala in the statements made by PW-1, PW-2 and PW-3, as reproduced above. In fact, there has been consistent stand of the witnesses about the role attributed to the respondents. The allegations find support in the Medico Legal Report. Thus, there is a reasonable chance of the respondents being convicted on the basis of the said evidence.
In view of the above, the present petition is allowed and Order dated 10.02.2012 passed by the Judicial Magistrate Ist Class, Kaithal, vide which, the application under Section 319 of the Cr.P.C was dismissed, is set aside and the respondents are accordingly ordered to be summoned under Section 319 Cr.P.C to face trial.
(NIRMALJIT KAUR) 30.04.2012 JUDGE gurpreet