Criminal Revision No.95 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.95 of 2010(O&M) Date of decision:-November 29, 2010 Dharam Singh ...Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE RAM CHAND GUPTA Present:- Mr.R.S.Rai, Sr. Advocate with Mr.Gautam Dutt, Advocate for the petitioner. Mr.Gazi Mohd., DAG, Punjab. Mr.Parminder Singh, Advocate For the complainant. ……. RAM CHAND GUPTA J. The present revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure (in short the `Code’) against order dated 2.12.2009, passed by learned Additional Sessions Judge, Sangrur, vide which application filed by the prosecution under Section 319 of the Code for summoning the present revision petitioner as an accused to face trial alongwith Harjinder Singh alias Rajinder Singh, Ramkaran Singh, Shemsher Singh alias Sher Singh and Karamjit Singh, already facing trial in Sessions Case No.4 of 31.1.2009 arising out of FIR No.105, dated 13.9.2008, registered under Sections 302, 452, 148, 149 of the Indian Penal Code (in short `IPC’), at Police Station Lehra, was allowed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Additional Sessions Judge, Sangrur. Criminal Revision No.95 of 2010(O&M) -2- Brief facts necessary for disposal of the present revision petition are that Tarsem Singh son of Niranjan Singh, resident of Village Dhadoli Kalan, lodged a complaint regarding murder of his brother Chamkaur Singh on the allegations that he alongwith his brother Chamkaur Singh had gone to the house of his in-laws at village Sangatiwala, when accused Harjinder Singh armed with kirch, accused Karamjit Singh armed with soti, his brothers Dharam Singh and Sher Singh son of Ram Karan Singh and Ramkaran Singh son of Hazura Singh empty handed entered the house. They started quarrelling with them. Dharam Singh and Sher Singh caught hold of his brother by his arms and accused Harjinder Singh had given a kirch blow underneath his right flank, which proved to be fatal. After completion of investigation, report under Section 173 of the Code was filed by prosecution against accused Harjinder Singh, Sher Singh, Ramkaran Singh and Karamjit Singh. However, it was mentioned in the report that presence of present revision petitioner accused-Dharam Singh could not be secured and that proceedings for declaring him proclaimed offender were pending. However, lateron police made a request for suspension of the proceedings under Section 82 of the Code against the present revision petitioner accused on the plea that an enquiry regarding his involvement on the application moved by him in this regard before higher police authorities was going on. The case was committed by learned Illaqa Magistrate to the Court of Sessions. Learned Court of Sessions framed charges against accused Harjinder Singh alias Rajinder Singh, Ramkaran Singh, Shemsher Singh alias Sher Singh and Karamjit Singh for offences under Section 302 read with Section 34 and Section 452 IPC. In the meantime police also completed the enquiry proceedings qua present revision petitioner accused vide enquiry report dated 5.12.2008 and vide the said enquiry report, Superintendent of Police (Detective), Sangrur, made a recommendation to the Senior Superintendent of Police, Sangrur, for constituting a team for looking into the allegations. Pursuant to the said report, Senior Superintendent of Police, Sangrur, constituted an investigation team consisting of Superintendent of Police (Detective), Sangrur, DSP Lehra and SHO, Police Station Lehra. They gave a report on 29.5.2009 that revision Criminal Revision No.95 of 2010(O&M) -3- petitioner-accused Dharam Singh was innocent. However, in the said report, it was mentioned that accused Dharam Singh was present in the house of his maternal uncle Ramkaran Singh and was watching T.V. in his house and hence, supplementary report under Section 173(8) of the Code regarding innocence of present revision-petitioner accused Dharam Singh was filed before the Illaqa Magistrate, which was also forwarded by learned Illaqa Magistrate to the Court of Sessions as the main case was already committed before that Court. Statements of seven prosecution witnesses were already recorded by learned trial Court when the present application was moved on behalf of the prosecution under Section 319 of the Code for summoning present revision petitioner accused on the plea that from the evidence adduced before the Court, it is clearly made out that he was also involved in the commission of murder of Chamkaur Singh and hence, he is also to be summoned to face trial alongwith accused already facing trial. The application was contested by the accused already facing trial before the Court. Learned Additional Sessions Judge, after hearing learned public prosecutor for the State, learned counsel for the complainant and learned defence counsel for the accused, already facing trial before the Court and after going through the whole record passed the impugned order summoning present revision-petitioner accused to face trial alongwith the accused already facing trial before the Court. The material witnesses examined by the prosecution on the basis of which the impugned order has been passed are complainant Tarsem Singh, who appeared as PW2 and another eye-witness Sukhjinder Singh, who appeared as PW3. The complainant deposed regarding the whole case of prosecution, as detailed above, and his version was duly corroborated by PW3-Sukhjinder Singh. Both of them specifically deposed that accused Dharam Singh and Sher Singh had caught hold of the deceased by his arms and hence they facilitated the stabbing of deceased Chamkaur Singh by accused Harjinder Singh with kirch. It has been contended by learned counsel for the revision petitioner-accused that the impugned order cannot be sustained in the eyes Criminal Revision No.95 of 2010(O&M) -4- of law as the same has been passed by learned trial Court without considering the enquiry report dated 29.5.2009, which clearly established that petitioner was watching T.V. in the house of his maternal uncle Ramkaran Singh and hence, he did not participate in the alleged occurrence. It is further contended that no reliance can be placed upon the testimonies of PW2 Tarsem Singh and PW3 Sukhjinder Singh as they are the interested witnesses as complainant Tarsem Singh is brother of deceased, whereas PW3 Sukhjinder Singh is the co-brother of complainant. It is further contended that in the cross-examinations of PW2 and PW3, they admitted that the names of accused were told to them by their father-in-law Bhag Singh and hence it is contended that revision petitioner accused cannot be summoned on the basis of statements of these witnesses. On the other hand, it has been argued by learned State counsel assisted by counsel for the complainant that at this stage only prima facie case is to be seen and that from deposition of PW2-Tarsem Singh duly corroborated by another eye-witness PW3 Sukhjinder Singh, there is sufficient evidence for revision petitioner accused Dharam Singh to face trial alongwith his co-accused and hence, there is nothing as to why this Court should interfere in the discretion exercised by learned trial Court. The scope and ambit of Section 319 of the Code has been elucidated in several decisions of Hon’ble Apex Court. It is pertinent to reproduce the same, which 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 of- fence, 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 pro- ceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the court, he may be ar- rested or summoned, as the circumstances of' the case may re- quire, for the purpose aforesaid. (3) Any person attending the court although not under arrest or upon a summon, may be detained by such court for the pur- pose of the inquiry into, or trial of, the offence which he ap- Criminal Revision No.95 of 2010(O&M) -5- pears 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 com- menced afresh, and witnesses re-heard; (b) Subject to the provisions of clause (a), the case may pro- ceed 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 Joginder Singh v. State of Punjab (1979) 1 SCC 345: AIR 1979 SC 339, Hon’ble Apex Court observed as under:- “6. A plain reading of Section 319(1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried alongwith the other accused......” It was further observed in para 9 as under:- “9. As regards the contention that the phrase 'any person not being the accused' occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No. 2 of the charge sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression." In Municipal Corporation of Delhi v. Ram Kishan Rohtagi Criminal Revision No.95 of 2010(O&M) -6- and Ors. (1983 (1) SCC 2) after referring Joginder Singh's case (supra), it was observed as under:- “ 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 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. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it." On a careful reading of Section 319 of the Code as well as the aforementioned decisions of Hon'ble Apex Court, it becomes clear that the trial court has jurisdiction to add any person not being the accused before it to face trial along with other accused persons, already facing trial, if the Court is satisfied at any stage of the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. However, the trial court can take such a step to add such a person as an accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials do not constitute the evidence. The power is discretionary and however, the discretion must be exercised judicially having regard to the facts and circumstances of the case. It is an extraordinary power which is conferred on the Court and hence should be used very sparingly and only Criminal Revision No.95 of 2010(O&M) -7- for taking action against a person against whom action had not been taken earlier. The word "evidence" used in Section 319 contemplates the evidence of witnesses given in Court. Further under Sub-section (4)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. Hence by virtue of Sub-section (4)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. In subsequent decision in Michael Machado v. Central Bureau of Investigation 2000(2) RCR (Criminal) 75 (SC), it was held that the Court must have reasonable satisfaction from the evidence led that other person has committed an offence and there is prospect of his conviction. In Mohd.Shafi v. Mohd.Rafiq and another 2007(2) RCR (Criminal) 762, the Court had observed that such power can be exercised if the Court is satisfied that the accused so summoned is in all likelihood would be convicted. However, in the case of Hardeep Singh v. State of Punjab and others 2008(4) RCR (Criminal) 947, the Hon'ble Apex Court noticed all these judgments and observed that test formulated in Mohd. Shafi's case (supra) substantially curtails discretionary power of the Court conferred by the Code under sub-Section (1) of Section 319 and hence, Hon'ble Apex Court found that matter requires fresh consideration and referred the following two questions to a Larger Bench:- “(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete? (2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted.” Hon'ble Apex Court in Hardeep Singh's case (supra) while Criminal Revision No.95 of 2010(O&M) -8- referring the case to a larger Bench was also of the view that observations in Mohd.Shafi's case (supra) do not appear to be inconsonance with the statutory provisions or previous decisions of Hon'ble Apex Court. It was also observed that bare reading of Sub Section (1) of Section 319 of the Code would leave no room of doubt what the Section requires and that it must appear to the Court from the evidence that any person not being the accused has committed any offence for which such person should be tried along with other accused already facing trial. In latest decision rendered by Hon'ble Apex Court in Suman v. State of Rajasthan and another 2010(1) Criminal Court Cases 269 (S.C.), after referring all other earlier decisions, on the point observed 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.” Hence, what emerges from the aforesaid legal preposition is that power conferred under Section 319 of the Code, is discretionary power with the trial Court to summon or not to summon a person as an additional accused to face trial alongwith the accused already facing trial and however, power being discretionary has to be exercised by a judicially trained mind and very sparingly and hence it is basically for a court, deciding such an application, to take decision on the basis of law and evidence. In view of this legal preposition this Court is to see as to whether discretion exercised by learned trial Court in summoning the revision-petitioner-accused to face trial alongwith the accused already facing Criminal Revision No.95 of 2010(O&M) -9- trial is a legally exercised discretion or as to whether the same suffers from any illegaltiy or perversity warranting interference by this Court in exercise of its revisional jurisdiction. It may be mentioned here that law is also well settled that at the stage of summoning of additional accused under Section 319 Cr.P.C. requirement is not to sift and appreciate the evidence and then come to the conclusion whether the same is believable or not. The word used in Section 319 of the Code is `appears' which has a greater significance as already discussed by Hon'ble Apex Court in various judgments referred to above. In view of the latest pronouncement of Hon'ble Apex Court in Suman's case (supra), trial Court is only required to see as to whether prima facie evidence has been adduced before it for its satisfaction that such person has committed any offence for which he can be tried with the accused already facing trial. In the present case, complainant Tarsem Singh, when appeared as PW2 had supported the prosecution version in its entirety. He has specifically deposed that revision-petitioner-accused Dharam Singh alongwith co-accused Sher Singh had caught hold of his brother by his arms and that co-accused Harjinder Singh had given kirch blow. His deposition was duly corroborated by another eye-witness Sukhjinder Singh PW3. Merely in view of the deposition in cross-examination that accused Dharam Singh was not personally known to them and that his name was disclosed to them by father-in-law of Tarsem Singh-PW2, namely, Bhag Singh, it cannot be said that learned trial Court has committed any illegality by placing reliance upon their testimonies at this stage, for the purpose of summoning the petitioner-accused to face trial. The minute appreciation of their depositions could be done by learned trial Court at the time of final decision of the case. More-over, it has been stated at the time of arguments on behalf of the prosecution that Bhag Singh has also been examined by prosecution after summoning present petitioner-accused. In view of my above discussion, in the light of factual matrix of the case and the legal preposition, discussed above, it cannot be said that discretionary power exercised by learned trial Court under Section 319 of the Code in summoning the petitioner-accused to face trial with the accused Criminal Revision No.95 of 2010(O&M) -10- already facing trial suffers from any illegality or perversity warranting interference by this Court in this revision petition. There is no merit in the present revision petition. The same is, hereby, dismissed. However, it is made clear that nothing observed herein shall be construed as an expression of opinion of this Court on the decision of this case on merits by learned trial Court 29.11.2010 ( Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter ? Yes/No.