Judgment:
Criminal Revn. No.3596 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revn. No.3596 of 2013 Reserved on. January 29, 2014 Date of Decision: February 11, 2014 Paras .......Petitioner Versus State of Haryana .......Respondent CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA Present: Present Mr.Randhir Shehrawat, Advocate for the petitioner. Mr.Pradeep Virk, Deputy Advocate General, Haryana. <><><> TEJINDER SINGH DHINDSA, J.
The instant revision petition is directed against the order dated 24.8.2013 in the light of which an application forwarded by the Public Prosecutor under Section 319 of the Code of Criminal Procedure has been accepted and the petitioner, along with another, has been summoned to face trial as additional accused under Sections 307/34 of the Indian Penal Code and 25 of the Arms Act in FIR No.259 dated 25.5.2012 registered at Police Station Sadar Bhiwani.
2. Brief facts as emanating from the pleadings are that FIR No.259 dated 25.5.2012, under Sections 147, 148, 307, 120-B and 34 of the Indian Penal Code and 25/54/59 of the Arms Act Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 2 and 61 of the Excise Act was registered at Police Station Sadar Bhiwani against Jitender and others. Petitioner was neither named in the FIR nor was any role attributed to him. Case of the prosecution was that when the police party was patrolling at bus stand Taalu, a secret informer passed information that in village Dhanana near Desi Liquor Vend, incident of firing had taken place in which one person had been injured and one boy had been caught by the public. Thereupon, SI Japan Singh along with Constable Surender Kumar reached the spot and in the meantime HC Naveen Kumar and EHC Subhash Chander had also reached there. A boy who disclosed his name as Jitender son of Krishan had been caught by the public. On questioning aforementioned Jitender, it was revealed that he and Rahul son of Rajbir had come to village Dhanana on the asking of Sandeep son of Rishipal and Sandeep had asked Jitender and Rahul to sit in the vehicle to go to the Liquor Vend. Jitender further disclosed that there were two other boys along with Sandeep whose names and addresses were not known to them. At the Desi Liquor Vend, an altercation had taken place and one fire shot had hit Rahul and Jitender himself had also received injuries. At that point of time, information was received on telephone that the person who had received bullet injury in village Dhanana and whose name was Rahul had died due to bullet injury. On such basis, the FIR in question had been registered.
3. Learned counsel would submit that during the process of investigation, the police had interrogated the petitioner and had also conducted a polygraphic test with the prior permission Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 3 of Additional Chief Judicial Magistrate, Bhiwani. Such polygraphic test was conducted on 13.8.2012 and on 29.9.2012, and in the report it was mentioned to the effect - “According to test and analysis of polygrams, his response appeared to be truthful on all the issues which are mentioned above”.. Consequently, the petitioner was not challaned by the police.
4. It so transpires that during the stage of trial, the prosecution examined Manjit son of Raghbir Singh as PW1 on 2.4.2013. Solely on the basis of statement made by PW1, an application was forwarded by the prosecution under Section 319 of the Code Criminal Procedure for summoning the present petitioner along with another as an additional accused and the Additional Sessions Judge, Bhiwani, vide impugned order dated 24.8.2013 has allowed the application and summoned the present petitioner along with another as an additional accused.
5. Learned counsel would vehemently argue that the name of the petitioner was neither mentioned in the FIR nor any role was attributed to him. The petitioner had been found innocent in the investigation, but subsequently, after recording of statement of PW1, the application under Section 319 of the Code of Criminal Procedure moved by the prosecution has been allowed and the petitioner has been summoned as an additional accused without there being any material/evidence before the Court. As such, it is contended that the impugned order cannot sustain.
6. Learned State counsel does not dispute the factual position as has been noticed hereinabove.
7. Learned counsel for the parties have been heard. Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 4 8. Section 319 of the Code of Criminal Procedure 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 upon which the inquiry or trial was commenced, which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then - (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 Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 5 of the offence upon which the inquiry or trial was commenced.”. 9. The extent of power with the Court to summon persons other than the accused under Section 319 of the Code of Criminal Procedure to stand trial in a pending case has come up for consideration before the Hon'ble Supreme Court in a number of decisions. In Lokpal v. Nihal Singh, 2006(2) RCR (Crl.) 707, 707 it was observed as under: “…The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors, including those 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. It was furthermore observed:
“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 Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 6 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…”.
10. In Lal Suraj @ Suraj Singh and another v. State of Jharkhand, 2009(1) RCR (Criminal) 504, 504 it had been held as follows: “…The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.”. 11. In the facts of the present case, the statement of PW1 recorded on 2.4.2013 has been placed on record at Annexure P3. It would be useful to re-produce the same: “PW1 Manjeet, aged 29 years son of Raghbir Singh, liquor contractor, resident of village Dhanana-III. on SA. Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 7 On 25.5.2012 at about 1.00 p.m. I along with Somar alias Akshay and Baljeet son of Satbir, both residents of village Dhanana-III, was present in our liquor vend situated at old bus stand of village Dhanana and we were calculating the account of our liquor vend. At that time Sandeep son of Rishipal, Pappu son of Leelu, Paras son of Ajit, Jitender son of Krishan, r/o Kandela and Rahul came there in a Alto car bearing registration No.HR-31D/2501. They entered in our liquor vend. There an altercation had taken place and thereafter Sandeep and Jitender took out their pistols and fired upon us but we escaped ourselves and they came out from the liquor vend. After hearing the noise of shot fired many persons gathered there and after seeing those persons they tried to run. During fired shot one bullet hit Rahul and he died at the spot. Jitender accused was caught hold by the public at the spot and remaining assailants managed to escape. Accused Jitender and Sandeep are present in court today. However, accused Paras son of Ajit, resident of Dhanana and Pappu son of Leelu, resident of Dhanana are not present today in court.”. 12. A perusal of the statement of PW1 would also reveal that no role whatsoever has been attributed to the present petitioner. The only assertion is that the petitioner along with Sandeep son of Rishi Pal, Pappu son of Leelu, Jitender son of Krishan and Rahul had come at the Liquor Vend. PW1 had further Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 8 specifically deposed that it was Sandeep and Jitender who had taken out the pistol and fired, whereupon a shot had hit Rahul who died at the spot.
13. In the impugned order dated 24.8.2013 passed by the Additional Sessions Judge, Bhiwani, the discussion, while accepting an application under Section 319 of the Code of Criminal Procedure, is to the following effect: “I have perused the challan; accompanying documents and the testimony of Manjeet (PW1). A reading of the challan as well as the testimony of Manjeet (PW1) would show that since the very inception, it has been his case that Pappu @ Sandeep and Paras had also participated in the occurrence. From the evidence so far led in this case, I am satisfied that a case is made out that Pappu @ Sandeep and Paras had also participated in the occurrence. In view of this, I hereby order that both of them be summoned to face trial along with the other accused. The application is allowed accordingly. Let notices be issued to the additional accused Paras son of Ajit Singh and Pappu alias Sandeep son of Lilu Ram, for 17.9.2013.”. 14. An order under Section 319 of Code of Criminal Procedure is not to be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions. For the Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document Criminal Revn. No.3596 of 2013 9 aforementioned purpose, the Court was required to apply stringent tests and one of these tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. Towards such proposition, reference may be made to the judgment of the Hon'ble Apex Court in Sarbjit Singh & another v. State of Punjab & another, 2009(3) RCR (Criminal) 388.
15. This Court would have no hesitation in holding that the impugned order dated 24.8.2013 passed by the Additional Sessions Judge, Bhiwani accepting an application under Section 319 of the Code of Criminal Procedure summoning the petitioner as an additional accused has been passed in a routine mechanical fashion and in utter disregard of the settled position of law in respect of the scope and ambit of the power exercisable under Section 319 of the Code of Criminal Procedure.
16. For the reasons recorded above, the present revision petition is allowed. The impugned order dated 24.8.2013 qua the petitioner is set aside and the matter is remitted back to the Additional Sessions Judge, Bhiwani for consideration afresh in the light of the observations contained in this order.
17. Petition allowed in the aforesaid terms. ( TEJINDER SINGH DHINDSA ) February 11, 2014 JUDGE SRM Note: Whether to be referred to Reporter?. (Yes/No) Malik Sushama Rani 2014.02.12 15:23 I attest to the accuracy and integrity of this document