Punjab-Haryana High Court
Amrik Singh vs State Of Punjab And Ors on 22 May, 2019
Equivalent citations: AIRONLINE 2019 P AND H 1759
Author: Manoj Bajaj
Bench: Manoj Bajaj
CRR-11877-2018 -1-
109
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-11877-2018
Date of decision-22.05.2019
Amrik Singh ....Petitioner
Vs.
State of Punjab and others ...Respondents
CORAM:- HON'BLE MR. JUSTICE MANOJ BAJAJ
Present: Mr. Jasraj Singh, Advocate for the petitioner.
***
MANOJ BAJAJ, J.
This criminal revision petition has been preferred by Amrik Singh (complainant) to challenge the order dated 26.10.2018 passed by Additional Sessions Judge, Hoshiarpur, whereby application under Section 319 Code of Criminal Procedure filed by the petitioner stood declined. The proceedings arises from case FIR No.10 dated 27.01.2016 registered under Sections 435, 436, 452, 427, 379, 148 and 506 read with Section 149 of Indian Penal Code.
In respect of occurrence dated 27.01.2016, the above mentioned FIR was registered on the basis of statement of Amrik Singh wherein it was alleged that when he along with son Mandeep Singh came to his house for feeding cattle, then from the side of the village a mob of youngsters consisting of aged persons, women etc carrying weapons like danda, kirpan, lathi and fire torch was seen approaching his house.
Approximately 33 persons were named in the FIR whereas 1 of 8 ::: Downloaded on - 24-06-2019 03:53:54 ::: CRR-11877-2018 -2- about 100 unknown persons were along with them. The complainant along with his son ran away from the spot to hide themselves. From the distant place, it was seen by them that the house, car, tractor and bundle of husk were set on fire by mob. On these broad allegations, the FIR was registered for the offences mentioned above.
After registration of the case, investigation was carried and final report dated 11.12.2017 under Section 173 Cr.P.C was submitted before the trial Court indicting only 17 persons, whereas 16 persons were found innocent. After framing of charges on 18.04.2018, the trial commenced against the accused persons and the prosecution examined complainant as PW-1, wherein the names of the persons who were found innocent in the final report were also mentioned before the Court. On the basis of the said statement, an application under Section 319 Cr.P.C was moved for summoning those persons (respondent Nos.2 to 17 herein) as additional accused to face trial.
The trial Court after examining the material, statement of accused proceeded to dismiss the application, vide order dated 26.10.2018.
Learned counsel for the petitioner contends that the mob was seen approaching the house of the complainant which consisted of numerous persons and the petitioner had specifically named respondent Nos.2 to 17 in his statement before the Court and therefore, in view of the Section 319 Cr.P.C they deserve to be summoned for facing prosecution in the above said FIR. According to him, learned trial Court has not at all considered the said material and evidence which reflects the participation of private 2 of 8 ::: Downloaded on - 24-06-2019 03:53:54 ::: CRR-11877-2018 -3- respondents in the crime. It is further contended that the plea of alibi cannot be set up by accused as a defence as the onus to establish this plea lies upon the accused.
After hearing learned counsel for the petitioner, this Court finds that in the revisional jurisdiction, this Court is to examine the correctness and validity of the order passed by the trial Court. A perusal of the FIR reveals that besides 33 names, it was also mentioned that approximately 100 unknown persons along with those 33 persons had attacked the house of the complainant and caused damage. The said occurrence was witnessed from distant place by the petitioner and his son who were hiding themselves from those assailants. Apparently, it was a mob which had allegedly attacked the house of the petitioner and the final report submitted by the Police indicted only 17 persons. It is fairly conceded by learned counsel for the petitioner that after final report, no steps were taken by the petitioner to prosecute the said innocent persons by way of filing a separate criminal complaint. It is further conceded that at the time of taking cognizance by the Court, the case against these innocent persons was not pressed on behalf of the petitioner or prosecution.
A perusal of the statement of PW-1 which is on record as Annexure P-3 simply mentions the names of the private respondents which is not supported by any convincing material. Considering the nature of the allegations and the case set up by the complainant, the sole statement of the complainant before the Court is neither sufficient nor convincing enough to establish their participation in the alleged crime. The trial Court has 3 of 8 ::: Downloaded on - 24-06-2019 03:53:54 ::: CRR-11877-2018 -4- carefully examined this issue and has correctly appreciated the facts, circumstances and the law on the subject to hold that no case is made out for summoning the said persons as additional accused.
At this stage, learned counsel for the petitioner again vehemently argued that the plea of alibi as set up by the additional accused can not be accepted as it is for the accused to discharge the said onus. At this stage, learned counsel for the petitioner has relied upon judgment passed by this Court in "Naresh Kumar Vs. State of Haryana" 2016 (3) Law Herald 2463 and judgment passed by Telangana and Andhra Pradesh High Court in "Kovvuri Venkata Rama Reddy Vs. Mandru Ganga Raju and another"
2018 (2) ALT (Criminal) 335. In the said cases, the issue before this Court was the correctness and validity of the order passed by the trial Court whereby the application under Section 319 Cr.P.C was allowed. The petition before High Court was brought by the additional accused who had set up this plea of alibi. It was in that context the Court had observed that it was for accused to discharge the said onus and therefore, the Court did not accept the said defence.
In the cited cases, the trial Court had proceeded to summon the additional accused not only on the basis of statement of complainant, but the said statement was further corroborated by the medical evidence as well as the statement under Section 164 Cr.P.C. The facts of the said case are entirely different and the said judgment is not applicable to the facts and circumstances of the present case.
Whereas in the present case, application already stands
4 of 8 ::: Downloaded on - 24-06-2019 03:53:54 ::: CRR-11877-2018 -5- dismissed by the Court after examining the final report as well as the statement of PW-1. Therefore, this Court in the revisional jurisdiction is to examine the evidence during trial and correctness of the impugned order only.
Learned counsel for the petitioner relied upon another judgment passed by Allahabad High Court, titled as "Ram Narain Harijan Vs. State of Uttar Pradesh and others", 2014 (10) R.C.R.(Crimina) 1955. In the said case, while dealing with the application under Section 319 Cr.P.C, trial Court had dismissed the same by relying upon the material collected by the Investigating Agency. The issue came up before the High Court wherein it was held that provisions under Section 319 Cr.P.C are confined to examine the evidence which has been adduced only during the trial and therefore, the approach adopted by the trial Court was erroneous. In these facts, the High Court had set aside the trial court order and the matter was remanded back for reconsideration of the application of the complainant. The facts in the said case are absolutely different as the trial Court in the present case has examined the testimony of complainant in Court as PW-1. The relevant portion of the trial Court judgment reads as under:-
"5. In the facts and circumstances of the case and in view of the enquiry report, simply naming these persons as co-accused by the complainant is not sufficient to hold that there are sufficient grounds to proceed against these persons or they should be tried along with other accused. The power under Section 319 Cr.P.C is extra ordinary power which is to be exercised judiciously and should be used 5 of 8 ::: Downloaded on - 24-06-2019 03:53:54 ::: CRR-11877-2018 -6- with great caution and only when more than prima-facie case is made out. In the present case, as discussed above, there is a detailed enquiry conducted by the police on the basis of which all these persons were found innocent. The premises of the complainant was burnt by the mob and simply because the complainant had named these persons as co-accused, those persons cannot be summoned to face trial alongwith other accused, when the police has given specific reasons for finding them innocent."
Reading of the above indicates that the Court has given specific reasons while dis-allowing the application, as the complainant failed to make out more than prima facie case for exercising the power under Section 319 Cr.P.C. Lastly, learned counsel for the petitioner has cited judgment passed by the Hon'ble Supreme Court in Rajender Singh Vs. State of U.P. and another", 2007 (3) R.C.R. (Criminal) 1022, to contend that burden to prove the plea of alibi lies upon the accused which he could do by leading evidence in the trial. The Hon'ble Supreme Court specifically observed that no finding on the plea of alibi can be recorded by High Court for the first time in a petition under Section 482 Cr.P.C. Again it was a case, where an additional accused had challenged the summoning order under Section 319 Cr.P.C which was allowed by the High Court on the ground of alibi which was set aside by the Hon'ble Supreme Court. In the present case, the facts are totally reverse as the Court has found that the evidence adduced during trial is not sufficient enough to indicate involvement of private respondent 6 of 8 ::: Downloaded on - 24-06-2019 03:53:54 ::: CRR-11877-2018 -7- Nos.2 to 17 as accused in the alleged crime.
At this juncture, it will be useful to refer to judgment passed by Constitution Bench of Hon'ble Supreme Court in "Hardeep Singh Vs. State of Punjab and others" 2014 (1) R.C.R. (Criminal) 623, wherein in respect of power under Section 319 Cr.P.C, the following observations were made:-
99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C In Section 319 Cr.P.C the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted.' There is, therefore, no scope for the Court acting under Section 319 Cr.P.C to form any opinion as to the guilt of the accused."
The above said judgment was recently followed in "Labhuji Amratji Thakor and others Vs. State of Gujarat and another" wherein following observations were made:-
"The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie
7 of 8 ::: Downloaded on - 24-06-2019 03:53:54 ::: CRR-11877-2018 -8- case of offence against the appellants. The mere fact that Court has power under Section 319 Cr.P.C to proceed against any person who is not named in the FIR or in the charge sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh (supra) has to apply the test, i.e."more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction."
In view of the above totality of facts and circumstances of this case as well as on the subject, it is absolutely clear that the trial Court has carefully examined and dealt with the material on record by passing a reasoned order whereby the application under Section 319 Cr.P.C was dismissed. This Court does not find any illegality or impropriety in the impugned order warranting interference in the revisional jurisdiction.
Petition is dismissed.
(MANOJ BAJAJ)
JUDGE
22.05.2019
vanita
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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