Rajvir Singh and Others Vs. State of Punjab - Court Judgment

SooperKanoon Citationsooperkanoon.com/951237
CourtPunjab and Haryana High Court
Decided OnFeb-27-2012
Case NumberCriminal Revision No. 1228 of 2010
Judge RAMESHWAR SINGH MALIK
AppellantRajvir Singh and Others
RespondentState of Punjab
Excerpt:
rameshwar singh malik, j. oral: the instant revision petition has been filed by the petitioners against the order dated 30.3.2010 passed by the learned additional sessions judge, mansa, thereby summoning the petitioners to face the trial under section 302, 34, 404 ipc, allowing the application of the prosecution under section 319 of the code of criminal procedure ('cr.p.c.' for short). succinctly put, the facts relevant for resolving the short controversy involved in the present case are that fir no. 39 dated 9.7.2009 under sections 302, 34, 404 ipc was registered at police station jhunir against five persons including the petitioners. however, the police filed challan only against two accused namely makhan singh and hardip singh, putting the present three petitioners in column no.2. it is not in dispute that names of the present petitioners were mentioned in the fir as well as in the statements recorded under section 161 cr.p.c. learned senior counsel for the petitioners vehemently contended that there was no evidence against the petitioners for summoning them under section 319 cr.p.c. learned counsel for the petitioners further submits that soma kaur was a woman of easy virtue and she was having undesirable relations with a number of persons. there were 28 calls from mobile phone of makhan singh to soma kaur and soma kaur to makhan singh starting from 7:55 hours. the last call from makhan singh to soma kaur was at 11:26 p.m. and last call from soma kaur to makhan singh was at 11:29 p.m. during the night of occurrence. learned senior counsel for the petitioners, while relying upon the judgments of the hon'ble supreme court in guriya @ tabassum tauquir versus state of bihar 2007 (0) aijel-sc 3982 and lal suraj @ suraj singh versus state of jharkhand 2009 (1) rcr (criminal) 504, concluded by submitting that the impugned order was not sustainable in law and may be set aside. per contra, learned counsel for the complainant submits that the order passed by the trial court is a just order which has been rightly passed keeping in view the facts and circumstances of the case. while relying upon the judgment of the hon'ble supreme court in suman versus state of rajasthan 2009 (4) rcr (criminal) 908, he submits that the present revision petition had no substance and was liable to the dismissed. i have heard the learned counsel for the parties and with their able assistance, have gone through the record of the case. after giving thoughtful consideration to the rival contentions raised by learned counsel for the parties and in view of the peculiar facts and circumstances of the present case, this court is of the considered opinion that the present revision petition is liable to be dismissed being devoid of any merit. it is undisputed that initially the fir was registered against the five persons including the present petitioners. not only that, the complaint- nasib kaur when stepped into the witness box has also stated on oath that the accused persons including the present petitioners had taken away her daughter, soma kaur. nasib kaur-complainant, while deposing before the court, has levelled the direct and specific allegations against the petitioners. the relevant part of her statement, which is appended as annexure p-2, reads as under: so far as the argument raised by the learned counsel for the petitioners about the numerous calls between makhan singh and soma kaur on the mobile phones is concerned, there is no material available on the record of this case to substantiate this argument of learned senior counsel for the petitioners. thus, the argument raised by the learned senior counsel for the petitioners is without any force. there is no dispute regarding the law laid down by the hon'ble supreme court in the judgments relied upon by the learned senior counsel for the petitioners. however, in the given fact situation, the judgments relied upon are not applicable in the present case as the same are distinguishable on facts. on the other hand, the hon'ble supreme court had elaborate discussion on the scope of section 319 cr.p.c. in suman's case (supra). the relevant observations made by the hon'ble supreme court, in para 15 and 16 of the judgment, read as under: 15. in view of the settled legal position as above, we hold that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under section 319 cr.p.c. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. as a corollary, we hold that the process issued against the appellant under section 319 cr.p.c. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her. 16. before proceeding further, we deem it proper to observe that in some of the decisions, this court has emphasized that discretion under section 319 cr.p.c. should be exercised cautiously and not as a matter of routine - michael machado v. central bureau of investigation (supra), anil singh and another v. state of bihar and another (2006) 13 scc 421 and mohd. shafi v. mohd. rafiq and another (2007) 14 scc 544. in michael machado's case, the court was called upon to consider whether the metropolitan magistrate was justified in summoning the appellants under section 319 cr.p.c. at the penultimate stage of the trial. the first appellant in that case was the chief manager of malad branch of corporation bank at mumbai and the second appellant was chief manager of wadala branch (mumbai). on a complaint lodged by deputy manager of the bank with the allegation that the bank has been defrauded by certain persons resulting in financial loss to the tune of rs.50 lacs, a first information report was registered by the police. after investigation two charge sheets were filed before metropolitan magistrate against 4 persons. after perusing the charge sheets, the metropolitan magistrate felt that the cbi, which had conducted the investigation, was shielding the appellants. he, therefore, sought explanation from the cbi. after considering the explanation, the metropolitan magistrate opined that the investigating officer had committed an offence under section 219 ipc and issued notice to him. simultaneously, the learned metropolitan magistrate decided to implead the appellants as additional accused. that order was challenged by the concerned investigating officer. the high court quashed the order but left it open to the metropolitan magistrate to take necessary action under section 319 cr.p.c. at an appropriate stage. thereafter, the trial commenced against the four accused and as many as 49 witnesses were examined by the prosecution. till that stage, learned metropolitan magistrate did not consider it necessary to implead the appellants as accused. however, when statements of the remaining three witnesses were recorded, he passed a brief order summoning the appellants. the high court upheld the order of the metropolitan magistrate. this court quashed the summoning order by observing that though evidence of last 3 witnesses may create some suspicion against the appellants but that was not sufficient for convicting the appellants for the offence of conspiracy. the court also felt that there was no warrant for wasting the massive evidence collected by the trial court against the 4 accused. in the course of judgment, the court made the following observation: "the basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. it is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. in other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. first is that the other person has committed an offence. second is that for such offence that other person could as well be tried along with the already arraigned accused. but even then, what is conferred on the court is only a discretion as could be discerned from the words "the court may proceed against such person" the discretionary power so conferred should be exercised only to achieve criminal justice. it is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. it must be remembered that there is no compelling duty on the court to proceed against other persons." coming back to the facts of the present case, this court finds no illegality or perversity in the impugned order passed by the learned trial court nor any manifest illegality has been pointed out by the learned senior counsel for the petitioners, warranting the exercise of revisional jurisdiction by this court. it is also the well settled proposition of law that the revisional jurisdiction is to be exercised only when there is a patent illegality or perversity in the impugned order. as noted above, no such patent illegality or perversity has been pointed in the impugned order. the allegations against the petitioners are serious and specific. the offence which has been committed is punishable under section 302 ipc. the evidence against the petitioners including the last seen evidence, if goes unrebbuted, may lead to the conviction of the petitioners. no other argument has been raised. in view of the above discussion, coupled with the reasons aforementioned, the present revision petition is devoid any merit and it must fail. accordingly, the revision petition is ordered to be dismissed, however, with no order as to costs.
Judgment:

Rameshwar Singh Malik, J.

Oral:

The instant revision petition has been filed by the petitioners against the order dated 30.3.2010 passed by the learned Additional Sessions Judge, Mansa, thereby summoning the petitioners to face the trial under Section 302, 34, 404 IPC, allowing the application of the prosecution under Section 319 of the Code of Criminal Procedure ('Cr.P.C.' for short).

Succinctly put, the facts relevant for resolving the short controversy involved in the present case are that FIR No. 39 dated 9.7.2009 under Sections 302, 34, 404 IPC was registered at Police Station Jhunir against five persons including the petitioners. However, the police filed challan only against two accused namely Makhan Singh and Hardip Singh, putting the present three petitioners in column No.2. It is not in dispute that names of the present petitioners were mentioned in the FIR as well as in the statements recorded under Section 161 Cr.P.C.

Learned senior counsel for the petitioners vehemently contended that there was no evidence against the petitioners for summoning them under Section 319 Cr.P.C. Learned counsel for the petitioners further submits that Soma Kaur was a woman of easy virtue and she was having undesirable relations with a number of persons. There were 28 calls from mobile phone of Makhan Singh to Soma Kaur and Soma Kaur to Makhan Singh starting from 7:55 hours. The last call from Makhan Singh to Soma Kaur was at 11:26 p.m. and last call from Soma Kaur to Makhan Singh was at 11:29 p.m. during the night of occurrence. Learned senior counsel for the petitioners, while relying upon the judgments of the Hon'ble Supreme Court in Guriya @ Tabassum Tauquir versus State of Bihar 2007 (0) AIJEL-SC 3982 and Lal Suraj @ Suraj Singh versus State of Jharkhand 2009 (1) RCR (criminal) 504, concluded by submitting that the impugned order was not sustainable in law and may be set aside.

Per contra, learned counsel for the complainant submits that the order passed by the trial court is a just order which has been rightly passed keeping in view the facts and circumstances of the case. While relying upon the judgment of the Hon'ble Supreme Court in Suman versus State of Rajasthan 2009 (4) RCR (criminal) 908, he submits that the present revision petition had no substance and was liable to the dismissed.

I have heard the learned counsel for the parties and with their able assistance, have gone through the record of the case.

After giving thoughtful consideration to the rival contentions raised by learned counsel for the parties and in view of the peculiar facts and circumstances of the present case, this Court is of the considered opinion that the present revision petition is liable to be dismissed being devoid of any merit.

It is undisputed that initially the FIR was registered against the five persons including the present petitioners. Not only that, the complaint- Nasib Kaur when stepped into the witness box has also stated on oath that the accused persons including the present petitioners had taken away her daughter, Soma Kaur. Nasib Kaur-complainant, while deposing before the Court, has levelled the direct and specific allegations against the petitioners. The relevant part of her statement, which is appended as Annexure P-2, reads as under:

So far as the argument raised by the learned counsel for the petitioners about the numerous calls between Makhan Singh and Soma Kaur on the mobile phones is concerned, there is no material available on the record of this case to substantiate this argument of learned senior counsel for the petitioners. Thus, the argument raised by the learned senior counsel for the petitioners is without any force.

There is no dispute regarding the law laid down by the Hon'ble Supreme Court in the judgments relied upon by the learned senior counsel for the petitioners. However, in the given fact situation, the judgments relied upon are not applicable in the present case as the same are distinguishable on facts.

On the other hand, the Hon'ble Supreme Court had elaborate discussion on the scope of Section 319 Cr.P.C. in Suman's Case (supra). The relevant observations made by the Hon'ble Supreme Court, in para 15 and 16 of the judgment, read as under:

15. In view of the settled legal position as above, we hold that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 Cr.P.C. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the Court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. As a corollary, we hold that the process issued against the appellant under Section 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her.

16. Before proceeding further, we deem it proper to observe that in some of the decisions, this Court has emphasized that discretion under Section 319 Cr.P.C. should be exercised cautiously and not as a matter of routine - Michael Machado v. Central Bureau of Investigation (supra), Anil Singh and another v. State of Bihar and another (2006) 13 SCC 421 and Mohd. Shafi v. Mohd. Rafiq and another (2007) 14 SCC 544. In Michael Machado's case, the Court was called upon to consider whether the Metropolitan Magistrate was justified in summoning the appellants under Section 319 Cr.P.C. at the penultimate stage of the trial. The first appellant in that case was the Chief Manager of Malad Branch of Corporation Bank at Mumbai and the second appellant was Chief Manager of Wadala Branch (Mumbai). On a complaint lodged by Deputy Manager of the bank with the allegation that the bank has been defrauded by certain persons resulting in financial loss to the tune of Rs.50 lacs, a first information report was registered by the police. After investigation two charge sheets were filed before Metropolitan Magistrate against 4 persons. After perusing the charge sheets, the Metropolitan Magistrate felt that the CBI, which had conducted the investigation, was shielding the appellants. He, therefore, sought explanation from the CBI. After considering the explanation, the Metropolitan Magistrate opined that the Investigating Officer had committed an offence under Section 219 IPC and issued notice to him. Simultaneously, the learned Metropolitan Magistrate decided to implead the appellants as additional accused. That order was challenged by the concerned Investigating Officer. The High Court quashed the order but left it open to the Metropolitan Magistrate to take necessary action under Section 319 Cr.P.C. at an appropriate stage. Thereafter, the trial commenced against the four accused and as many as 49 witnesses were examined by the prosecution. Till that stage, learned Metropolitan Magistrate did not consider it necessary to implead the appellants as accused. However, when statements of the remaining three witnesses were recorded, he passed a brief order summoning the appellants. The High Court upheld the order of the Metropolitan Magistrate. This Court quashed the summoning order by observing that though evidence of last 3 witnesses may create some suspicion against the appellants but that was not sufficient for convicting the appellants for the offence of conspiracy. The Court also felt that there was no warrant for wasting the massive evidence collected by the trial Court against the 4 accused. In the course of judgment, the Court made the following observation:

"The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

But even then, what is conferred on the court is only a discretion as could be discerned from the words "the court may proceed against such person" The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons."

Coming back to the facts of the present case, this Court finds no illegality or perversity in the impugned order passed by the learned trial court nor any manifest illegality has been pointed out by the learned senior counsel for the petitioners, warranting the exercise of revisional jurisdiction by this Court.

It is also the well settled proposition of law that the revisional jurisdiction is to be exercised only when there is a patent illegality or perversity in the impugned order. As noted above, no such patent illegality or perversity has been pointed in the impugned order. The allegations against the petitioners are serious and specific. The offence which has been committed is punishable under Section 302 IPC. The evidence against the petitioners including the last seen evidence, if goes unrebbuted, may lead to the conviction of the petitioners.

No other argument has been raised.

In view of the above discussion, coupled with the reasons aforementioned, the present revision petition is devoid any merit and it must fail. Accordingly, the revision petition is ordered to be dismissed, however, with no order as to costs.