Punjab-Haryana High Court
Paramjit Singh vs State Of Punjab And Others on 18 September, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Revision No.1666 of 2011
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Revision No.1666 of 2011 (O&M)
Date of Decision : 18.09.2012
Paramjit Singh
........Petitioner
Versus
State of Punjab and others
........Respondents
******
CORAM : HON'BLE MR. JUSTICE PARAMJEET SINGH
Present : Mr. H.S. Gill, Sr. Advocate with
Mr. R.K. Dhiman, Advocate, for the petitioner.
Ms. Jaspreet Kaur, AAG, Punjab.
Mr. S.P.S. Sidhu, Advocate, for respondents No.2 to 4.
PARAMJEET SINGH, J.
The instant criminal revision has been filed against the order dated 10.05.2010, passed by learned Additional Sessions Judge, Moga whereby the application filed under Section 319 Cr.P.C. for summoning respondents No.2 to 4 has been dismissed.
Brief facts of the case are that the prosecution case was registered on the complaint of Paramjit Singh/petitioner on the allegation that he has two sons. His elder son Jaswant Singh was doing private job in the Verka Plant at Ludhiana. On 17.10.2010 on Dushehra holiday he came to his village. The complainant along with Jaswant Singh and his cousin Nirmal Singh were going to meet Sarban Singh Ex-Sarpanch of the village to get transfer of Jaswant Singh from Ludhiana to Moga Dairy. When they reached near the Dharamshala, Sarban Singh met them and they were talking with Sarban Singh there at about 10.15. p.m. Ravinder Singh @ Gorkha crossed them on his tractor trolley and after parking the tractor trolley in his house he Crl. Revision No.1666 of 2011 -2- along with 2/3 persons came out of the house. Ravinder Singh was armed with .32 bore revolver and other persons were armed with base ball bat and lathis. On reaching near the complainant party, Ravinder Singh raised a lalkara as to why they were standing there and fired 3/4 shots from his revolver towards them. The complainant hid himself towards Sarban Singh and Nirmal Singh on one side and the fire hit Jaswant Singh and he fell down. Ravinder Singh with the help of other persons dragged Jaswant Singh to their house and he was killed by giving beatings by all the accused persons. The motive behind the occurrence is that Gurdip Singh s/o Fauja Singh had criminal litigation with son of Sarban Singh and cases were pending between them and Ravinder Singh was helping Gurdip Singh whereas the complainant had cordial relations with Sarban Singh and due to this reason Ravinder Singh was nursing grudge against them.
The police investigated the case but no action was taken against respondents No.2 to 4. Thereafter, an application under Section 319 Cr.P.C. was moved by the learned Public Prosecutor for summoning Karamjit Singh, Jagmohan Singh and Surinder Kaur as additional accused, which has been dismissed by learned Additional Sessions Judge, Moga, vide impugned order dated 10.05.2012.
Learned counsel for the petitioner vehemently argued that the complainant-petitioner, father of the deceased, who was present at the spot, while appearing as PW1, has specifically mentioned the names and role of the persons sought to be summoned as additional accused. But due to the death of his son he was shocked and could not name respondents No.2 to 4 at the time of registration of the FIR. Learned counsel further contended that in his statement Ex.P1, on the basis of which the FIR was recorded, he Crl. Revision No.1666 of 2011 -3- specifically stated that 2-3 other persons were also accompanying accused Ravinder Singh, who had caused injuries to his son with baseball bat and soti.
Learned counsel for respondents No.2 to 4 vehemently argued that there is no iota of evidence against respondents No.2 to 4. FIR is the first version wherein the name of respondents No.2 to 4 does not find mention. Statement was recorded after about two months. As such the application has been rightly rejected by the learned Additional Sessions Judge.
I have heard counsel for the parties and perused the record. I have given my thoughtful consideration to the submissions advanced by counsel for the parties. In the instant case, respondents No.2 to 4 namely Karamjit Singh, Jagmohan and Surinder Kaur were although not specifically named in the First Information Report but it is specifically mentioned in the FIR that 2-3 other persons were accompanying accused Ravinder Singh. In the statement of PW1 in Court as well as supplementary statement under Section 161 Cr.P.C. they have been named.
Learned counsel for the private respondents has relied upon the judgment of the Hon'ble Apex Court in case of Michael Machando & Anr. vs. Central Bureau of Investigation & anr. Reported in (2000) (3) SCC 262 to contend that if upon scanning of evidence it is found that ultimate conviction is not possible, then trial court can refuse to exercise its discretionary power for adding any accused and can reject application under Section 319 of the Cr.P.C. The facts of the case cited by the learned counsel for the respondents No.2 to 4 are different from the fact of the present case because the Hon'ble Apex Court in the judgment cited by the learned counsel for the respondents held that power under Section 319 Cr.P.C. is to be Crl. Revision No.1666 of 2011 -4- invoked, not as a matter of course, but in circumstances when the exercise of such power is imperative to meet the ends of justice but at the same time, it has been held that evidence adduced against such persons must be substantiated before summoning them for trial. In the cited case there was no direct evidence of complicity of the alleged accused in the incident but in the instant case from the statements of complainant, it is clear that all the three respondents have been categorically named in the statement before the court as well as their names were mentioned in the supplementary statement before the police authorities.
The Hon'ble Supreme Court in the case of Lok Ram vs. Nihal Singh (2006) 3 SCC (Crl.) 532 also held that the word `evidence' in Section 319 Cr.P.C. contemplates the evidence of witnesses given in court. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary. Such material contained in the charge sheet or the case diary does not constitute evidence. Of course, an accused who has been discharged stands on a different footing. Such power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Indisputably, it is an extra ordinary 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 taken earlier.
In my opinion, at the time of deciding the application filed under Section 319 Cr.P.C. if material evidence is on record for adding the accused then the learned trial court is not required to scan the entire evidence as if it is adjudicating the matter finally. It appears from the impugned order dated Crl. Revision No.1666 of 2011 -5- 10.5.2012 that learned trial court has decided the application under Section 319 Cr.P.C. as if the learned trial court was deciding this case after completion of the trial, therefore, in my view, it is a fit case in which the order impugned passed by the learned trial court rejecting the application under Section 319 Cr.P.C. deserves to be quashed. There is material on record to add respondents No.2 to 4 as additional accused and they are required to be tried along with another co-accused who was charge sheeted. Accordingly, the criminal revision is allowed and the impugned order dated 10.05.2012 is quashed and case is remanded to the trial Court. The trial court is directed to pass fresh order for taking cognizance against the respondents no. 2 to 4 in accordance with law.
(Paramjeet Singh) Judge September 18, 2012 R.S.