Punjab-Haryana High Court
Balbir Singh Brar vs State Of Punjab on 29 September, 1997
Equivalent citations: 1998CRILJ2002
Author: M.L. Singhal
Bench: M.L. Singhal
ORDER M.L. Singhal, J.
1. This is Crl. Misc. Petition filed under Section 482, Cr. P.C. by the petitioner (Shri Balbir Singh Brar, Deputy District Attorney-cum-Additional Public Prosecutor, Patiala) whereby he has prayed for the expunction of the remarks made against him by Shri R. L. Anand, Sessions Judge, Patiala in the order dated 7-6-1995 Annexure PI passed by him in Sessions Case No. 74T of 19-12-1994 decided on 22-8-1998 titled State v. Amar Nath son of Mukandi Lal Bansal and Ors.. Case FIR No. 12 of 28-1-1992 under Sections 324, 307, 323, 380/34, IPC of P.S. City Rajpura.
2. Facts which have given rise to this Criminal Miscellaneous petition filed by Shri Balbir Singh Brar are as follows :-
Vijay Kumar Modi son of Amar Nath Modi was married to Smt. Neena daughter of Amar Nath Bansal, Advocate-accused. Unfortunately, their marriage ran into rough weather and litigation erupted between them. Effort made to resolve their matrimonial dispute remained unsuccessful. On 10-8-1991 at about 1 p.m., gathering took place in the house of Shri Hari Sharnta, Advocate Rajpura. Shri Hari Sharma was close friend of Shri Amar Nath Bansal. Vijay Kumar Modi his father Amar Nath Modi, brothers Prem Kumar and Dharam Pal and one Bimal Kumar and one Tirlochan Singh went there at the agreed time and joined that gathering. Gathering took place in the chobara of the house of Shri Hari Sharma. Hari Chand of Samana was also present who is friend of Shri Amar Nath Bansal. Two sons of Shri Hari Sharma were also present in the chobara apart from Shri Hari Sharma, Advocate. When the talk for reconciliation was going on, Shri Amar Nath Bansal abused Dharam Pal in the name of his mother. Shri Amar Nath Bansal also tried to slap him. Shri Amar Nath Bansal lost temper and uttered "Tainu Kutiya Kis Ne Bulaiya Hai". Upon this, Shri Amar Nath Modi told Shri Amar Nath Bansal that Dharam Pal was his son and he was there as one of the members of the gathering with a view to bringing about reconciliation between Smt. Neena and Vijay Kumar Modi and he (Dharam Pal) had been invited there at his instance. Amar Nath Bansal, Hari Sharma, Hari Chand, two sons of Hari Sharma name Anupam Sharma and Dinkar Sharma in pursuance of their common intention became riotous and started beating Dharam Pal and Prem Kumar. Amar Nath Bansal and Hari Sharma gave beating to Dharam Pal, Prem Kumar and Vijay Kumar Modi. Effort was also made to wrongfully confine them. Amar Nath Modi and two brothers of Vijay Kumar Modi came down stairs. Thereafter, Amar Nath Bansal accused, with the intention to kill, pressed the neck of Vijay Kumar Modi together with his co-accused. Sufficient pressure was put on the neck of Vijay Kumar Modi that his eyes protruded out and he became nervous. Occurrence was witnessed by Bimal Kumar and Trilochan Singh who raised raula. Amar Nath Bansal released the throat of Vijay Kumar Modi. Thereafter, Amar Nath Bansal and his co-accused gave some more injuries to Vijay Kumar Modi after wrongfully confining them. Earlier to complaint dated 27-8-1991, there had been recorded two DDRs in P.S. City Rajpura. One DDR was recorded at the instance of the complainant party while the other was recorded at the instance of the accused side. In the DDR recorded at the instance of complainant side, the names of Anupam Sharma and Dinkar Sharma were not mentioned and the only qarration was that the two sons of Hari Sharma, Advocate participated in the crime. In the DDR lodged by Amar Nath Bansal, the names of Anupam and Dinkar Sharma figured.
3. Complaint dated 27-8-1991 was investigated by ASI. Statements of Vijay Kumar Modi, Amar Nath Modi, Prem Kumar were recorded on 5-2-1992. Statements of Dharam Pal, Bimal Kumar and Tirlochan Singh were recorded on 9-2-1992. Statement of Sohan Lal was recorded on 25-2-1992. Case was investigated by Deputy Superintendent of Police also. He interrogated Tirlochan Singh and others namely Bansi Lal and Sushil Bhardwaj, Advocates. The investigating officer came to the conclusion that the two sons of Hari Sharma, Advocate namely Anupam Sharma and Dinkar Sharma were not present in the chobara at the time of the alleged incident. Tirlochan Singh eye-witness also testified that they had been wrongly named in the DDR lodged by Vijay Kumar Modi. They were rather away to Jind in connection with the illness ' of their grand-father. Dinkar Sharma and Anupam Sharma were found innocent and they were ordered not to be challaned and shown in the column No. 2 of the report under Section 173, Cr. P.C. On the complaint of Vijay Kumar Modi, only Amar Nath Bansal, Hari Sharma and Had Chand were challened under Sections 324/307/323/380/34, IPC. Case Was committed to the Court of Session.
4. Initially, the sessions trial was pending before Shri S. S. Grewal, Additional Sessions Judge, Patiala. For some reason, with which we are not concerned here, the sessions trial was withdrawn from the Court of Shri S. S. Grewal, Additional Sessions Judge, Patiala and taken by the learned Sessions Judge on his own file.
5. Shri B. S. Brar, the present petitioner, made an application under Section 319, Cr. P.C. invoking the jurisdiction of the Court to summon Dinkar Sharma and Anupam Sharma for trial as according to him, there was sufficient evidence against them pointing towards their complicity in the commission of the offence. Learned Sessions Judge declined that application because Shri B. S. Brar had made that application without seeking instructions either from the complainant or from the District Magistrate or from the State or from the District Attorney. On merits he felt that the investigation carried out by DSP should have been respected which found Dinkar Sharma and Anupam Sharma innocent and Shri B. S. Brar should not have allowed himself to be swayed by some statements recorded belatedly under Section 161, Cr. P.C. while moving that application. He should have rather taken into account the statements of independent eye-witnesses who had not supported the story with regard to the alleged participation of Anupam Sharma and Dinkar Sharma in the occurrence.
6. I have heard the learned Advocate for the petitioner and learned Assistant Advocate General for the State of Punjab.
7. Shri B. S. Brar, Deputy District Attorney, Patiala was .public prosecutor notified by the State. Section 2(u) of the Code of Criminal Procedure defines "public prosecutor" as meaning any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor. Section 24(3) of the Code of Criminal Procedure lays down that for every District, the State Govt. may appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the District. Public Prosecutor is thus an officer appointed by the State Government for every district. He may be Additional Public Prosecutor as well. Public Prosecutors conduct prosecutions launched in the Courts on behalf of the State. A public prosecutor is in full charge of the conduct of the prosecution in the Court. It is he who is authorised to make all sorts of applications before the Court. Such intention, is reflected in Section 321 of the Code of Criminal Procedure. Section 321, Cr.P.C. reads as follows :-
321. Withdrawal from Prosecution :-
The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal:-
(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences;
Provided that where such offence -
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
(iii) involved the misappropriation or destruction of, or damage, to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Govt. he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.
Section 319 of the Code of Criminal Procedure reads as follows :
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 which he appears to have committed.
(2) Where such person is riot 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 reheard;
(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.
8. Through the provisions of Section 319, Cr. P.C., the Public Prosecutor brings it to the notice of the Court that it appears from the evidence that such and such person, though not an accused, has committed some offence for which he could be tried together with the accused and be put up for trial and the Court may proceed against that person for the offence which he appears to have committed. Powers of the Court vesting in it under Section 319, Cr. P.C. can be invoked by the private complainant as well and suo-motu also, the Court can exercise powers vesting in it under Section 319, Cr. P.C. and can order any person though not challaned by the police, to be put up for trial for the offence which he appears to have committed.
9. Shri B. S. Brar, Public Prosecutor was fully justified in moving that application under Section 319, Cr. P.C. as he was in full charge of the case. Before moving that application, he was not required to consult the District Magistrate or the State or his District Attorney. Such consultation by him is not envisaged by the Code of Criminal Procedure. It may be envisaged by the Code of Conduct governing him so far as service discipline is concerned. In Kishun Singh v. State of Bihar (1993) 1 Rec Cri R 647 : 1993 Cri LJ 700, their Lordships of the Hon'ble Supreme Court observed that under Section 193, Cr. P.C. Court can summon a person as accused on the basis of material placed on record and without recording any further evidence. Public Prosecutor could thus make an application to the Court for the summoning of Anupam Sharma and Dinkar Sharma on the basis of the evidence collected during investigation for facing trial without waiting for the evidence to be recorded in the case before it. A Court of Session to which case is committed for trial by Magistrate, can, without itself recording evidence, summon a person not named in police report under Section 173, Cr. P.C. (though named in FIR) to stand trial along with those already named therein. Such power is under Section 193 of Cr. P.C. and not under Section 319, Cr. P.C
10. For the reasons given above, I am of the opinion that Shri B. S. Brar, Deputy District Attorney/Additional Public Prosecutor, Patiala was fully justified in making application under Section 319/193, Cr. P.C. to the Court of Session for the summoning of Dinkar Sharma and Anupam Sharma for their trial before it along with their co-accused namely Amar Nath Bansal and others as the making of this application fell within his domain and the provisions of Criminal Procedure Code do not enjoin upon him that he should have consulted the District Magistrate or the State or the District Attorney before making that application. Learned Sessions Judge was not justified in passing strictures against him and censuring his conduct. So, this Criminal Miscellaneous petition is accepted and the strictures passed against Shri B. S. Brar, Deputy District Attorney/Additional Public Prosecutor, Patiala are ordered to be expunged and taken off the record.