Delhi District Court
Inspr. Harender Singh vs State on 29 August, 2014
IN THE COURT OF SH. SANJAY JINDAL, ADDL. SESSIONS
JUDGE WEST - 04, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No. 36/3
IN THE MATTER OF :
Inspr. Harender Singh,
(presently SHO at PS Chhawla),
S/o Sh. Mahavir Singh,
R/o RZ120B, Gali No. 3,
East Sagarpur,
New Delhi 110046
............PETITIONER
versus
State
(Govt. of NCT of Delhi)
Through Public Prosecutor Delhi
........RESPONDENT
DATE OF FILING : 09.10.2013
DATE OF ARGUMENT : 14.08.2014
DATE OF ORDER : 29.08.2014
O R D E R
1 This is a revision petition filed by petitioner Inspr.
CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 1/8 Harender Singh against the impugned Order dated 10.07.2013 passed by the Ld. MM thereby allowing application u/s 319 Cr.P.C moved by Ld. APP and summoning of petitioner as an accused u/s 323/325/342/34 IPC.
2 The brief facts necessary for disposal of the present petition are that FIR No. 02/08 P.S. Hari Nagar u/s 325/323/342/34 IPC was registered against three accused persons namely Baleshwar, Sanjay and Rattan Singh on the complaint of complainant Sh. Inder Partap Singh S/o Daya Shankar regarding the alleged act dt. 19.04.2007 of accused persons in which accused persons inflicted injuries to complainant and his associates namely Om Pratap Singh and Dinesh Pratap Singh and also wrongfully confined them in lift of DDU hospital. A chargesheet was filed against Baleshwar, Sanjay and Rattan Singh while names of Dr. Rajeev Arora, Dr. Ravinder, Dr. Ravi and nurse Rajender Kaur were kept in column no. 2. Charges u/s 325/34 IPC, u/s 323/34 IPC & 342/34 IPC were framed against above mentioned three accused persons on 19.11.2010. During trial part statement of complainant Inder Pratap Singh was recorded and PW2 ASI Rajbir Singh was also recorded. On 10.07.2013, when part statement of complainant was recorded an application u/s 319 Cr.P.C was moved by Ld. APP for summoning of Dr. Ravinder, Dr. Ravi Kant, Mrs. CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 2/8 Rajender Kaur, nurse and the present petitioner as accused, was filed. Same was considered by the trial court and the application was allowed keeping in view the deposition of PW1 and material available on record. Summons were issued to all the above mentioned four persons under the above mentioned provisions of law.
3 By way of present petition, it is contended on behalf of the petitioner that the impugned Order is liable to be setaside as the said order is bad in law and not sustainable. Further that the trial court has not considered the material facts involved in the case. It is argued by the counsel that there is no specific allegations against the petitioner and that the trial court has failed to appreciate the nature, scope and application of section 319 Cr.P.C and the impugned order is likely to result in miscarriage of justice and serious prejudice to the petitioner. It is further argued that as per settled law, the power u/s 319 Cr.P.C is discretionary power and the same should be sparingly exercised only to achieve criminal justice. Along with certain other contention, it is submitted that the impugned order regarding summoning of the petitioner be setaside. Ld. Counsel for petitioners has relied upon judgments of superior courts in AIR 1992 SC 604, AIR 1998 SC 128, (2003) 3 SCC 262, (1983) 1 SCC 1, 2003 Cr. L.J1057 (DHC), 1999 Cr. L.J. 159 (Raj), AIR 1990 SC CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 3/8 2158, 1998 Cr.L.J - 322 (Kerala H.C), 2006 Cr. L.J 491 (Kerala H.C), 2009 Cr.L.J 193 (Orissa H.C), 2010 Cr.L.J80 and 2006 Cr.L.J 2425 in support of his contentions.
4 I have heard ld. counsel for petitioner and ld. Addl. PP for State and carefully perused the record including the trial court record in the light of submissions made before me.
5 The present case has been registered on the complaint dt. 03.05.2007 of complainant Inder Pratap Singh addressed to Commissioner of Delhi Police. After completion of investigation on said complaint, the police filed chargesheet only against three accused persons mentioned above and names of other four persons were kept in column no. 2 for want of sufficient incriminating evidence against them. The name of the present petitioner was not there in the chargesheet in any column. If contents of the complaint/FIR are perused, it is clear that the allegations regarding alleged act of beating and wrongful confinement are against the doctors, nurses and guards of DDU hospital and the allegations against the police are regarding non cooperation and registration of false case against the family members of complainant. So far as present petitioner is concerned, there is reference qua him only in the second and third line of page five of the complaint to the effect that SI CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 4/8 Harender Singh (petitioner) and his staff took both brothers of complainant to Hari Nagar police chowki and they kept on threatening and harassing them. There is no mention if any beatings were given to the complainant party by the petitioner or if there was any wrongful confinement on his part. So far as statement of the complainant as PW1 is concerned, it is mentioned on the page four of examination dt. 10.07.2013 that one police official namely Harinder Singh took his both brothers and put them in the lockup and gave beatings to them. Apart from above mentioned instances there is no material against the present petitioner for proceeding u/s 319 Cr.P.C.
Before proceeding further, it will not be out of place to have a reference to the language of section 319 Cr.P.C, which reads as under;
Section 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 CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 5/8 which he appears to have committed.
(2)Where such person .............
(3)Any person attending ..........
(4)Where the court proceeds .........
From language of section 319 Cr.P.C, it is clear that only those persons can be proceeded against under this provision who appear to have committed any offence for which they could be tried together with the accused (facing trial). In the present case, there are basically two parts of the story i.e one relating to the role of the doctors and staff of the DDU hospital and the other relating to the role of police officials. Both the parts are independent from each other and it cannot be said that any person responsible for any part out of the two mentioned above can be tried together with the persons responsible for the other part.
Further, the different superior courts have laid down guidelines for invoking section 319 Cr.P.C. In this regard, the ld. counsel for petitioner has referred to judgment of Hon'ble Supreme Court in Michael Machado & Anrs. vs. CBI & Anr. (2000) 3 SCC 262, wherein it has been held that' "The basic requirement of section 319 Cr.P.C is that the court must have reasonable satisfaction from the evidence CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 6/8 already collected during trial or in the inquiry regarding two aspects; first that some other person, who is not arraigned as an accused in that case has committed an offence. Second, that for such offence that other person could as well be tried alongwith the already arraigned accused. It is not enough that the court entertained some doubts from the evidence about the involvement of another person in the offence"
It is further held in the said judgment that;
" What is conferred on the court (section
319) is only a discretion as could be discerned from the words " the court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice.
It is not that the court should turn against another person whenever it comes across evidence connecting that person also with the offence".
In the present case, the ld. trial court has acted under u/s 319 Cr.P.C against the petitioner basically on the part CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 7/8 testimony of the complainant, which in itself is not a piece of evidence in true sense without test of crossexamination. It is never safe to proceed against any person u/s 319 Cr.P.C simply on the basis of a reference in untested part testimony of a single witness, particularly when the reference itself is contradictory to the contents of actual complaint. It should also not be forgotten that the petitioner was posted as Chowki Incharge at the relevant time and was confronted with a law and order situation due to struggle between the complainant's family on the one side and hospital staff on the other.
If the material available on record of the trial court is analyzed in light of the guidelines laid down by the superior courts and the very language of section 319 Cr.P.C, it becomes clear that there was no sufficient material against the petitioner, on the record, on the date of impugned order, for proceeding against him u/s 319 Cr.P.C. In my opinion, the summoning order dt. 10.07.2013 against the petitioner is not sustainable in the eye of law. Hence, with these observations, the present petition is allowed and the impugned order qua the petitioner is setaside.
TCR be sent back alongwith copy of this Order. File of the revision petition be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (SANJAY JINDAL) TODAY i.e.ON 29 August, 2014 ASJ:04:WEST:THC:DELHI th 29.08.2014 CR No. 36/3 Inspr. Harender Singh vs. State PAGE No. 8/8