Kavis Kumar Vs. State of Punjab - Court Judgment

S.S. Nijjar, J.

1. This petition under Section 482 Cr.P.C. has been filed with a prayer for quashing the summoning order dated 9.3.1998 passed by the Learned Additional Sessions Judge, Ferozepur and the proceedings consequentialthereto. It is stated that the petitioner has been falsely named in the First Information Report No. 139 dated 20.10,1997, under Sections 302/307/324/323/148/149 of the Indian Penal Code registered at Police Station, Khuian Sarwar. The petitioner was shown in Column No. 2 of the police report made after the completion of the investigation. In spite of the report having been submitted under Section 173 of the Code of Criminal Procedure, the Learned Additional Sessions Judge, Ferozepur has passed the orders summoning the petitioner.

2. It is submitted that the learned counsel for the petitioner that the summoning order is inherently without jurisdiction as it has been passed without following the procedure laid down under Section 319 of the Code of Criminal Procedure. Learned counsel has relied on a judgment of the Hon'ble Supreme Court in the case of Raj Kishore Prasad v. State of Bihar, 1996 (2) RCR, 804 and the judgment of this Court in the case of Kartar Singh v. State of Punjab 1998(1) RCR 387 and Pavitar Singh v. State of Punjab 1998(2) RCR (Crl.), 794 in support of the submissions that a person can only be summoned as an accused after some evidence has been recorded by the trial Court.

3. Reply has been filed by the respondents. It has been submitted that the petitioner was shown in column No. 2 of the report after complete investigation as the petitioner was found innocent. It is specifically stated thai he was involved by the complainant wrongly. The respondents have not made any comments on the liability of the summoning order as according to them the matter is subjudice.

4. I have considered the submissions made by the learned counsel for the parties and perused the record of the case.

5. A perusal of the order passed by the learned Additional Sessions Judge, Ferozepur, dated 9.3.1998 shows that no evidence has been recorded in the trial. The Learned Additional Sessions Judge has come to the conclusion that the petitioner was also in the petition of an accused as he had caught hold of the deceased. This prima facie conclusion has been arrived at by the Learned Additional Sessions Judge from the statement of Jagdish Lal, one of the injured witnesses. The relevant portion of the summoning order is as follows:-

'During the investigation of the case it has come that accused Kulwinder Kumar had caught hold the deceased Malkiat Kumar from his arms alongwith Ajay Kumar and Golu gave a knife blow on the left side on his chest and hat blow proved fatal. It has come in the statement of Jagdish Lal injured witness that Golu son of Thakar Ram, resident of village Haripura, armed with knife, Prince Kumar armed with knife, Raju armed with soti, Kulwinder Kumar son of Banwari Lal, Kavis Kumar son of Vinod Kumar, Ajay Kumar son of Om Parkash, Karaj Singh son of Jagir Singh and Vinod Kumar son of Sat Pal empty handed and the remaining accused were armed with Soti, chain and knife alighted from the Bus and lalkara was raised that Malkiat Kumar be caught hold and Kavis Kumar has caught hold the deceased from his arms alongwith Kulwinder Kumar; whereas, Karaj Singh has caught hold of Jagdish Kumar injured. Being this position when these accused who were shown in column No, 2 of the report under Section 173 Cr.P.C. were also one of the assailants, they be summoned to face trial under Sections 302/307/324/323/149 IPC and 148 IPC. Accused Kavis Kumar is stated to be already on bail, therefore, he be summoned through ordinary process; whereas accused Kulwinder Kumar and Karaj Singh be summoned through non-bailable warrants for 31.3.1998'.

6. I am of the considered opinion that the order passed by the Learned Additional Sessions Judge, Ferozepur is contrary to the provisions of Section 319 of the Code of Criminal Procedure. In the case of Ranjit Singh v. State of Punjab JT 1998 (6) SC, 512, the Hon'ble Supreme Court has held that from the stage of committal, the Court could deal with only the accused referred to in Section 209 of the Code of Criminal Procedure. It has been further held that there is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused. The only other stagewhen the Court is empowered to add any other person to the array of the accused is after recording the evidence. After recording evidenee, Section 319 of the Code of Criminal Procedure empowers the Court to summon any other person as an accused. This. Court is Sukhbir Singh v. State of Haryana Criminal Misc. No. 18124-M of 1998, decided on 9.11.2001, has quashed the summoning order for the same reasons. In that case, the petitioner was summoned for the offence under Sections 302/109/365/394 of the Indian Penal Code read with Section 120-B of the Indian Penal Code. The ratio of the aforesaid judgment is fully applicable to the facts and circumstances of the case.

7. In view of the above, the present petition is allowed. Summoning order dated9.3.1998, passed by the Learned Additional Sessions Judge, Ferozepur, alongwith consequential proceedings is hereby quashed qua the petitioner. No costs.