Punjab-Haryana High Court
Jinder Kaur @ Shinder Kaur And Another vs State Of Punjab on 7 September, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRR No.1042 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No. 1042 of 2011 (O&M)
Date of Decision: September 07, 2012
Jinder Kaur @ Shinder Kaur and another ... Petitioners
Versus
State of Punjab ... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers 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 ?
Present: Mr. V.K. Kataria, Advocate,
for the petitioners.
Ms. Jaspreet Kaur, AAG, Punjab.
Paramjeet Singh, J.
The instant criminal revision has been filed under Section 401 of the Code of Criminal Procedure challenging the order dated 26.02.2011 passed by the learned Additional Sessions Judge, Patiala, whereby the petitioners have been summoned as accused to face trial on an application of the prosecution under Section 319 of the Cr.P.C. in case FIR No. 275, dated 28.12.2009, under Sections 148, 307, 324, 323, 149 IPC read with Section 27 of the Arms Act, registered at Police Station Patran.
Brief material facts of the case are that Sakattar Singh- complainant is having a dispute regarding taking of lease of 7 kanals of land of Guru Teg Bahadur Nagar, Gulahar. On 28.12.2009, the petitioners accompanied by other accused out of whom some have been charge- CRR No.1042 of 2011 2 sheeted and are facing trial under Sections 307, 324, 323, 506, 148, IPC read with Sections 25 and 27 of the Arms Act, have inflicted injuries on the person of complainant and his companions. The petitioners were found innocent during investigation and their names were shown in the column no.2 of the report submitted under Section 173 Cr.P.C. The instant fight is outcome of the civil dispute pending between the parties over the gram panchayat land.
Learned counsel for the petitioners vehemently argued that no material is available on record on the basis of which petitioners could be summoned and ordered to face trial. Learned counsel for the petitioners further argued that powers under Section 319 Cr.P.C. are to be used very sparingly for summoning additional accused. Learned counsel for the petitioners further submitted that the petitioner no.1 - Jinder Kaur @ Shinder Kaur is a village Sarpanch and the land of the gram panchayat is being given on lease. For the purpose of putting pressure upon the petitioners, the application under Section 319 Cr.P.C has been moved and the names of the petitioners have been wrongly mentioned in the FIR. The only allegation even in the FIR against petitioner no.1 is to the effect that she has raised a lalkara and petitioner no.2 was having a dang in hand, only their presence has been shown at the alleged place of occurrence. None of the petitioners has been attributed any overt act or injury to any members of the complainant party. During investigation, petitioners have been found to be innocent and were not sent for trial.
Learned State counsel vehemently opposed the arguments of CRR No.1042 of 2011 3 the learned counsel for the petitioners and submitted that there are sufficient grounds to show that petitioners have caused injury to the person of complainant party. Learned State counsel has further vehemently argued that the names of the petitioners figured in the FIR and their presence is very much there. As such, the petitioners along with the persons who are already facing trial, have been rightly summoned to face trial.
I have considered the rival contentions of the learned counsel for the parties and perused the record.
Learned Additional Sessions Judge, Patiala vide order dated 26.02.2011, summoned the petitioners under Section 319 Cr.P.C. and the relevant portion of the order reads as under:-
4. Adverting to the case in hand, it is pertinent to mention that Sakattar Singh, complainant, in his statement got recorded on 28.12.2009, which forms basis of the present case, apart from naming the accused, who are already facing trial, had also named Jinder Kaur @ Shinder Kaur, Sarpanch, wife of Jarnail Singh, Gurlal Singh @ Lali son of Karnail Singh, Darshan Singh son of Bahal Singh and Darshan Singh son of Surjan Singh, to have participated in the occurrence, in which injuries were inflicted upon him and his companions. Also while in the witness box as PW1, the complainant had specifically named the aforesaid persons to have participated in the occurrence, apart from the persons, who are facing trial in the present case. Even, names of the said persons figure in the statement under Section 161 Cr.P.C. At this stage, considering the contents of the statement of Sakattar Singh, complainant and also other CRR No.1042 of 2011 4 material coming on record, there is sufficient evidence coming on record to summon Jinder Kaur @ Shinder Kaur, Sarpanch, wife of Jarnail Singh, Gurlal Singh @ Lali son of Karnail Singh, Darshan Singh son of Bahal Singh and Darshan Singh son of Surjan Singh as additional accused, along with accused, who are already facing trial. Accordingly, application is allowed, Jinder Kaur @ Shinder Kaur, Sarpanch, wife of Jarnail Singh, Gurlal Singh @ Lali son of Karnail Singh, Darshan Singh son of Bahal Singh and Darshan Singh son of Surjan Singh be summoned for 18.03.2011."
It would be appropriate to reproduce Section 319 of the Code, which 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 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 -
CRR No.1042 of 2011 5
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses 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."
The extent of the power of the Court to summon persons other than the accused to stand trial in a pending case has been considered by the Hon'ble Apex Court in case of Ram Singh and others vs. Ram Niwas and and another, 2009(3) RCR (Criminal) 501. In the said case, various authorities of the Hon'ble Apex Court have been considered by the Hon'ble Apex Court with reference to extent of power under Section 319 Cr.P.C. The relevant part from the above said judgment is extracted below:
"12. Indisputably, the court must satisfy itself about the existence of an extraordinary situation enabling it to exercise an extraordinary jurisdiction. It is true that the court is not denuded of its power to exercise the said jurisdiction only because a person named as an accused in the FIR was not charge-sheeted as a result whereof no cognizance has been taken against him. What is necessary for the said purpose is that the person concerned was not being tried as an accused before the Court at that stage.
13. This Court in the case of Kailash v. State of Rajasthan, 2008(2) RCR(Criminal) 200 : 2008(2) RAJ 323 : [2008(3) SCALE 338], has held that a glance of the provision would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such CRR No.1042 of 2011 6 person could be tried together with the accused who are also being tried. This Court has laid emphasis on the words, 'it appears from the evidence', 'any person', and 'has committed any offence'. It was further held that the power under Section 319 has to be essentially exercised only on the basis of the evidence brought on record of the case. The discretionary jurisdiction could, therefore, be exercised only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence.
14. In the case of Raj Kishore Prasad v. State of Bihar & Anr., 1996(2) RCR(Criminal) 804 : [(1996)4 SCC 495], this Court opined :
"14.Learned counsel differ however on the other question posed in Kishun Singh case [Kishun Singh v. State of Bihar, 1993(1) RCR(Criminal) 647 : (1993)2 SCC 16]. It was whether a Court of Session, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision ? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of CRR No.1042 of 2011 7 Original Jurisdiction gets lifted, thereby investing the Court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court sustained the order of the Court of Session (though it ostensibly was under Section 319 CrPC terming material of investigation before it as 'evidence') summoning the unnamed accused to stand trial with the named accused. A stage has thus been discovered, before the reaching of the stage for exercise of power under Section 319 CrPC, on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Sections 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228 the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused if a prima facie case is made out from the material available on the record."
15. In the case of Rakesh & Anr. v. State of Haryana, CRR No.1042 of 2011 8 2001(3) RCR(Criminal) 681 : [(2001)6 SCC 248], it was held :
"11.In support of his contention, learned Senior Counsel Mr. Ranjit Kumar referred to the decision of this Court in Joginder Singh v. State of Punjab, (1979) 1 SCC 345. In our view, this decision nowhere lays down that before a person is added as accused in a sessions trial case, he should be permitted to cross-examine the witnesses whose evidence is recorded. On the contrary, it lays down that once the Sessions Court is seized of the matter as a result of the committal order against some accused the power under Section 319(1) can come into play and the court can add any person, not an accused before it, as an accused and direct him to be tried along with other accused. The Court has further observed that the very purpose of enacting Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the expression 'any person not being the accused'."
16. We must, however, at this stage also place on record that this Court, in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., 1983(1) RCR (Criminal) 73 : [(1983)1 SCC 1], opined that the power under the said provision must be exercised very sparingly and not as a matter of course. In the case of Joginder Singh & Anr. v. State of Punjab & Anr.
CRR No.1042 of 2011 9[(1979) 1 SCC 345], this Court even opined that such a power can be exercised even without there being a committal order passed against a person. [see also Lok Ram v. Nihal Singh & Anr., 2006(2) RCR(Criminal) 707 : 2006(2) Apex Criminal 71 : [(2006)10 SCC 192]; Shashikant Singh v. Tarkeshwar Singh & Anr., 2002(3) RCR(Criminal) 191 : [(2002)5 SCC 738]; Michael Machado & Anr. v. Central Bureau of Investigation & Anr., 2000(2) RCR(Criminal) 75 : [(2000)3 SCC 262]; Palanisamy Gounder & Anr. v. State represented by Inspector of Police, 2006(2) RCR(Criminal) 235 : 2006 (2) Apex Criminal 244 : [(2005)12 SCC 327]; Kailash Dwivedi v. State of M.P. & Anr. [(2005)11 SCC 182] and Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RCR (Criminal) 762 : 2007(2) RAJ 534 : [2007(5) SCALE 611].
After considering the various judgments, the Hon'ble Apex Court in Ram Singh's case (supra) held as under:-
17. The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word 'appears'. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case.
18. The High Court furthermore committed a serious error insofar as it failed to take into consideration that CRR No.1042 of 2011 10 when the order dated 29th May 2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly."
In the present case also, in my opinion, learned Additional Sessions Judge has not recorded any finding that a prima facie case is made out against the petitioners and there is evidence on record on the basis of which it could reasonably be made out that such evidence will lead to conviction of the person sought to be summoned. In the instant case, only allegation against petitioner no.1 is that she has raised a `lalkara' and petitioner no.2 was having a dang. No overt act has been attributed to the petitioners in the statement of Sakattar Singh - complainant, who has been examined as PW1 and has been cross examined at length. Petitioner no.1 appears to have been summoned only for the reason that she is the Sarpanch of the Village. The mere presence at the spot is not sufficient specifically when the property involved is of the panchayat.
I, therefore, am of the opinion that impugned order dated 26.02.2011 passed by the learned Additional Sessions Judge, Patiala, cannot be sustained. Accordingly, for the reasons aforementioned, the impugned order is set aside. Petition is allowed.
September 07, 2012 [Paramjeet Singh] vkd Judge