Punjab-Haryana High Court
Paramvir @ Happy vs State Of Haryana on 12 August, 2008
Author: Ajai Lamba
Bench: Ajai Lamba
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc.352-M of 2008
DATE OF DECISION : AUGUST 13, 2008
PARAMVIR @ HAPPY ....... PETITIONER(S)
VERSUS
STATE OF HARYANA .... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr.Rakesh Nehra, Advocate, for the petitioner(s).
Mr. Narender Sura, AAG, Haryana.
AJAI LAMBA, J. (Oral)
Challenge in this petition is to order dated 25.10.2007 (Annexure P-3) whereby the petitioner has been summoned under Section 319, Code of Criminal Procedure (for short 'the Code') to stand trial along with co-accused; namely, Abhey Ram, Raj Kumari and Yashbir.
Learned counsel for the petitioner has raised a limited issue that during the course of trial, it must appear from "the evidence" that any person not being the accused has committed an offence. In the case in hand, the trial court committed an illegality in relying on only the examination-in-chief, as the cross-examination was deferred for filing the application under Section 319 of the Code, as is evident from statement of Jai Bhagwan (Annexure P-1). The statement of the witness in court is mere repetition of the FIR version, not tested by cross-examination. In this Criminal Misc.352-M of 2008 2 regard, reference has been made to the judgments of the Hon'ble Supreme Court of India in Mohd. Shafi v. Mohd. Rafiq and another, 2007(2) RCR (Criminal) 762 and Kailash v. State of Rajasthan and another, 2008(2) RCR (Criminal) 200.
Learned counsel for the respondent-State has opposed the contention on the ground that the examination-in-chief of the witness was sufficient material before the court to summon the petitioner.
I have considered the contention of the learned counsel for the parties and the issue involved in this petition.
In Mohd. Shafi's case (supra), the following has held in paras 9 and 13:-
"9. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983 (1) RCR (Crl.) 73 (SC) : 1983(1) SCC 1, a Division Bench of this Court while holding that even if a person had not been sent for trial by the police, the trial court would be entitled to invoke its jurisdiction after taking evidence, stating;
"19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law.
(Emphasis supplied)"
"13. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Criminal Misc.352-M of 2008 3 Procedure, it must arrived at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. (Emphasis supplied)"
In Kailash's case (supra), the Hon'ble Supreme Court of India has held the following (in paras 10 and 11):-
"10. In a reported decision in Mohd. Shafi v. Mohd.
Rafiq & Anr., 2007(2) RCR (Criminal) 762 : 2007(2) RAJ 534 : [JT 2007(5) SC 562], to which one of us (Sinha, J.) was a party, this Court had observed in para 7 as under:-
"Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf."
In the above case this Court referred to the decision reported in Municipal Corporation of Delhi v. Ram Krishan Rohtagi & Ors., 1983(1) RCR (Criminal) 73 : [(1983) 1 SCC 1] and highlighted the following remarks made in para 19 therein which are to the following effect:
"19. ........ But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken........"
11. In Krishnappa v. State of Karnataka, 2004(4) RCR (Criminal) 678 : 2004(3) Apex Criminal 643: [(2004) 7 SCC 792] this Court, while relying on another reported decision in Michael Machado v. Central Bureau of Investigation, 2000(2) RCR (Criminal) 75 : [(2000)3 SCC 262] went on to hold that the power under Section 319, Cr.P.C. is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. The Court further observed :
"...... a judicial exercise is called for, keeping a Criminal Misc.352-M of 2008 4 conspectus of the case, including the stage at which the trial has already proceeded with with the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence."
The Court further observed :
"The Court, while examining an application under Section 319 Cr.P.C., has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 Cr.P.C., all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused."
The gist of what has been declared by the Hon'ble Supreme Court of India is that the evidence produced by the prosecution must satisfy the court that the other accused or those who have not been arrayed as accused have committed the offence. It must be made to appear to the court concerned that the person who is not facing trial has committed an offence. The discretion in this behalf must be judicially exercised only after the court records its satisfaction. There must exist a possibility that the accused so summoned, in all likelihood, would be convicted. This discretionary power should be exercised only to achieve criminal justice and the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. It is not the compelling duty of the court to proceed against other persons. For the exercise of discretion under Section 319, Code of Criminal Procedure, all relevant factors need to be kept in view and the order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. The Criminal Misc.352-M of 2008 5 power conferred in Court under Section 319 of the Code, should be used very sparingly and only if compelling circumstances exist for taking cognizance against other person against whom action has not been taken.
The Scheme of the Code, incorporated in Chapter XII provides "INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE" as the heading. It begins with Section 154 of the Code, with the registration of a case and concludes at Section 173 of the Code, regarding the completion of investigation. Section 154 of the Code provides for the registration of FIR, followed by various powers and steps of investigation in cognizable and non-cognizable offences and the examination of witnesses, remanding of accused etc. Section 169 of the Code provides the discharge of the accused if evidence is deficient. Section 170 of the Code provides for sending the case to Magistrate when the evidence is sufficient and that is followed by Section 173 of the Code . Section 173(2) of the Code provides that all the particulars indicated in the provision be given. In this way the Report under Section 173 of the Code is conclusion of the investigation and the same is termed as 'final report' or 'challan'. Thus, the investigation is conducted and concluded as per the provisions contained in Chapter XII of the Code and is in discharge of statutory duties of the Investigating Agency.
At this stage, the material available on record i.e. the documents accompanying the final report under Section 173 of the Code, are to be prima facie evaluated under Section 228 of the Code at the time of framing charge in Sessions trial cases, as to whether any case is made out or not. Only then the Public Prosecutor is called upon to enter into Criminal Misc.352-M of 2008 6 prosecution evidence. This material is not to be rebutted by defence evidence at the stage of charge, as the report under Section 173 of the Code, accompanied by the documents, is enough.
The conclusion of Report under Section 173 of the Code is sufficient for the court to consider framing of charge. But for provisions of Section 319 of the Code, this is not even relevant.
Therefore, the power of Section 319 of the Code is an extraordinary power, to be sparingly used under compelling circumstances. It is to be used only when there is sufficient material brought on record to summon the persons not facing trial. Merely on the statement of the complainant who had almost reproduced his FIR version the powers under Section 319 of the Code should not be ordinarily exercised.
It is the duty of the police authorities to give complete details of reasons in the Report under Section 173 of the Code as to why a particular person is not being challaned and on the basis of which evidence. Even the Punjab Police Rules provide in Para 25.17 (6) that Senior Police officers must supervise the investigation findings. This material can help the court to independently assess the material on the record while dealing with application under Section 319 of the Code. With the rise in cases of dowry and dowry deaths etc. as well as group clashes, political rivalries etc. the naming of innocent including women, old, infant, children has become a glaring reality. During the investigations if they are found to be innocent, then the provisions of Section 319 of the Code should not be allowed to be used as tools by Criminal Misc.352-M of 2008 7 unscrupulous complainants to settle their personal scores. The process of law cannot be allowed to be abused. The aim must be to achieve criminal justice.
The court is required to consider that one opinion of innocence of the person sought to be added as an accused, is already there in the report under Section 173 of the Code. The opinion has been recorded after investigation by the police in discharge of its statutory functions under Chapter XII of the Code. The opinion of innocence, thus, recorded can only be doubted to achieve criminal justice.
On consideration of para-3 of impugned order dated 25.10.2007, it is reflected that the statement of Jai Bhagwan in the FIR version has been considered in extenso, in regard to the role of the petitioner and, thereafter, it has been observed that "the statement made by Jai Bhagwan, complainant, PW1, on oath in the Court is vouchsafed in the earlier statement made by him before the police". The impugned order does not reflect consideration of the statement given by the said witness to be reliable enough so as to summon the petitioner to stand trial. The statement has not been considered within the framework or scope of Section 319 of the Code. I find that the impugned order has been passed mechanically, merely on the ground that the FIR version has been given by the witness in Court.
The statement of Jai Bhagwan in the FIR version had already been considered by the Investigating Agency and had been found to be unreliable, in regard to the commission of offence by the petitioner. I am of the considered opinion that summoning of the petitioner on the same Criminal Misc.352-M of 2008 8 version having been repeated in Court, without its veracity having been tested by way of cross-examination or some other material coming on record, is not to achieve criminal justice. It has been repeatedly held that the power should be exercised sparingly and only if compelling circumstances exist. No consideration is reflected from the impugned order. Merely saying that on the basis of statement of Jai Bhagwan, complainant-PW-1, prima facie conviction of the petitioner cannot be ruled out, is surely, not sufficient consideration within the scope of Section 319, Code of Criminal Procedure, as declared by the Hon'ble Supreme Court of India.
In view of the above, this petition is allowed. The impugned order (Annexure P-3) is set aside.
It is, however, made clear that the prosecution would be at liberty to make an application for summoning the petitioner, if some evidence is produced, which prima facie, satisfies the Court that the petitioner has committed the offence. The court, thereafter, would consider summoning the petitioner to stand trial along with the accused already facing trial, so as to achieve criminal justice, in accordance with law.
August 13, 2008 ( AJAI LAMBA ) Kang JUDGE