Criminal Revision No.2074 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: July 23, 2010 Criminal Revision No.2074 of 2009 (O&M) Roshan Lal Sood ...........Petitioner Versus State of Punjab and another ..........Respondents Criminal Revision No. 1851 of 2010 (O&M) Roshan Lal Sood & another ...........Petitioners Versus State of Punjab ..........Respondent Criminal Revision No. 2836 of 2009 (O&M) Akhil Sood ...........Petitioner Versus State of Punjab and another ..........Respondent Criminal Revision No.2074 of 2009 2 Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Saurav Arora, Advocate for Mr.C.M.Munjal, Advocate for the petitioners. (in Criminal Revisions No. 2074 and 2836 of 2009) Mr.Sanjeev Bansal, Advocate for the petitioners (in Criminal Revision No.1851 of 2010) Mr.Amandeep Singh Rai,Assistant Advocate General, Punjab Mr.D.P.S.Kahlon,Advocate for respondent No.2 Mr.R.S.Bajaj, Advocate for the complainant (in Criminal Revision No. 1851 of 2010) Sabina, J. Vide this order, the above-mentioned three criminal revision petitions are being disposed of by a common order as they have arisen out of common judgments dated 21.7.2009 and 20.5.2010. Petitioners have filed these revision petitions under Section 401 of the Code of Criminal Procedure (`Cr.P.C.' for short) against the judgment passed by the Sessions Judge, Amritsar dated 21.7.2009 as well as the Additional Sessions Judge,Amritsar dated 20.5.2010 whereby Roshan Lal Sood and Akhil Sood were summoned to face the trial along with Sanjiv Sood for commission of an offence, punishable under Section 307 read with Section 34 of the Indian Penal Code (`IPC' for short) and the order vide which charge has been framed against the petitioners. The contents of the FIR read as under:- "2. I am resident of abovesaid address and an agriculturist. We are two brothers. My elder brother Surinder Singh, aged 30 years, is also an agriculturist. We have a property dispute with Sanjiv Sood son of Krishan Dev Sood, Khatri by caste, resident of House No. 81, Gali No.6, SJS Avenue, Ajnala Road, Amritsar, which is pending in the court of Shri Vivek Puri, ASJ Amritsar. We both brother had gone to the court to know about our bail orders. Criminal Revision No.2074 of 2009 3 When after knowing about the orders passed on our bail application by the court of Shri Vivek Puri, we both brothers were coming through stair case, Roshan Lal son of Babu Ram Khastri who was already present there, raised a lalkara saying “let Surinder Singh and Charanjit Singh not go alive today” whereupon Akhil Sood son of Roshan Lal Sood, hold my brother from hair and Sanjiv Sood aforesaid fired a shot from his licensed .32 bore revolver with an intention to kill my brother Surinder Singh which hit on his lower abdomen near right thigh. I raised an alarm saying “mar ditta mar ditta” (Killed killed), whereupon all the assailants fled away from the spot together with their respective weapons. I have got my brother admitted in Hartej Hospital who is under treatment”. Learned counsel for the petitioners has submitted that the petitioners had been found innocent during investigation. It had been found that the petitioners were not present in Court complex on the alleged day of occurrence. Rather, the petitioners were present at Fatehgarh Sahib in order to distribute the Wedding Cards of daughter of petitioner-Roshan Lal. Roshan Lal had fallen sick and was admitted in Civil Hospital Amloh on 3.1.2007. Learned counsel for the petitioners has placed reliance on Michael Machado and another vs. Central Bureau of Investigation and another 2002(2) RCR (Criminal) RCR 75. Paras 11 and 12 of the said judgment read as under:- "11. 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 Criminal Revision No.2074 of 2009 4 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 as tried along with the already arraigned accused. 12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed again 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 another 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 rembered that there is no compelling duty on the Court to proceed against other persons." Learned counsel has also placed reliance on Sarabjit Singh and another vs. State of Punjab and another (2009) 16 Supreme Court Cases 46 wherein (in para 22 ) it has been held as under:- "22. The observation of this Court in MCD and other decisions following the same is that mere existence of a prima facie case Criminal Revision No.2074 of 2009 5 may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion, While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction". Learned counsel for the respondents, on the other hand, has submitted that the plea of alibi raised by the petitioners would more appropriately be considered during trial. At this stage, there was sufficient material available before the trial Court for summoning the petitioners as an additional accused. The Apex Court in Suman vs. State of Rajasthan and another (2010) 1 Supreme Court Cases 250 held as under as under:- “A reading of the plain language of Section 319(1) CrPC makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of Section 319(1) Cr.PC from which it can be inferred that a person who is named in the FIR or complaint but against whom charge sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offence for which he could be tried Criminal Revision No.2074 of 2009 6 together with the other accused. “The process issued against the appellant under Section 319 CrPC 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. A person who is named in the FIR 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 CrPC 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. “The Magistrate had objectively considered the entire matter and judiciously exercised discretion under Section 319 CrPC for taking cognizance against the appellant. The issue of summons against the appellant was not an abuse of the process of the court. While deciding the application filed under Section 319 CrPC, the Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law and sister-in-law had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated the complainant’s husband to inflict physical torture upon her, which were supported by the statements recorded by the police under Section 161 CrPC and by the Magistrate under Section 164 CrPC. In her complaint Respondent No.2 alleged that after one Criminal Revision No.2074 of 2009 7 week of the marriage, her mother-in-law and sister-inlaw (the appellant) told her that in the marriage, items like scooter, fridge, air conditioner, etc. were not given and the marriage party was not served well and that on the instigations of the mother-in-law and the appellant sister-in-law, the husband gave beating with the belan, and the appellant forcibly removed the rings. “The complainant clearly spelt out the role played by the appellant and made a specific mention about this in the letters written to her parents and the Magistrate opined that a prima facie case was made out for issuing process against the appellant. The father and mother of respondent No.2 and four other persons, whose statements were recorded under Section 161 CrPC, clearly spelt out the role played by the appellant in harassing Respondent No.2 and instigating the complainant’s husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand of dowry or harass Respondent No.2 because the appellant was living with her husband. Therefore, the trial of the appellant should proceed and should be decided expeditiously. “The High Court broadly referred to the factual matrix of the case and held that the orders passed by the Magistrate and Sessions Judge did not suffer from any illegality or perversity warranting interference under Section 482 CrPC. The approach adopted by the High Court is in consonance with the settled law. Although at one stage, the Sessions Judge allowed the revision filed by the appellant and declared that in view of the bar of Criminal Revision No.2074 of 2009 8 limitation contained in Section 468 CrPC, the Magistrate could not have taken cognizance against the appellant, the said order was set aside by the High Court and the matter was remitted for fresh disposal of the revision petition. In the post remand order passed by him, the Sessions Judge independently examined the entire record and held that prima facie case was made out for initiating proceedings against the appellant herein under Section 498-A IPC.” Section 319 Cr.P.C. 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- Criminal Revision No.2074 of 2009 9 (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.” In the present case, as per the FIR, the complainant had averred that at the time of occurrence Roshan Lal had raised a lalkara that let Surinder Singh and Charanjit Singh be not spared. Thereupon, Akhil Sood caught hold of the brother of the complainant whereas Sanjiv Sood fired with a shot from his revolver. Although the petitioners were found innocent during investigation yet the complainant when he appeared in the witness box deposed with regard to the involvement of the petitioners at the time of the alleged crime. As per Section 319 Cr.P.C., if during trial, it appears 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. Thus, there was sufficient material available before the trial Court to summon the petitioners as additional accused to face the trial along with the other co-accused Sanjiv Sood. Petitioners have taken up the plea of alibi. At this stage, no finding on the plea of alibi can be recorded by this Court. The burden to prove the plea of alibi is upon the petitioners which they can do so by leading evidence during trial. Section 103 of the Indian Evidence Act, 1872 reads as under:- Criminal Revision No.2074 of 2009 10 "103. Burden of proof as to particular fact.- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person." The second illustration to the said Section reads as under:- "B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it." Thus, if the plea of alibi is taken by the accused then he has to prove the said plea. In these circumstances, at this stage, it would not be in the interest of justice to quash the impugned order whereby the petitioners have been ordered to be summoned to face the trial as additional accused. The petitioners would be at liberty to establish their pleas of alibi during trial. Learned trial Court rightly held that the charge was liable to be framed against all the accused and the plea of alibi could not be taken in consideration at this stage. The said plea was yet to be established during trial. In the facts and circumstances of the present case, the judgments relied upon by the learned counsel for the petitioners fail to advance the case of the petitioners. Accordingly, all the above-mentioned petitions are dismissed. ( Sabina ) Judge July ,2010 arya Criminal Revision No.2074 of 2009 11