CRIMINAL REVISION NO.2512 OF 2009 -1- IN THE HIGH COURT OF PUNJAB OF HARYANA AT CHANDIGARH ***** 1. CRIMINAL REVISION NO.2512 OF 2009 DATE OF DECISION : 04.11.2011 Bhupinder Singh & Others …Petitioners Versus State of Punjab …Respondents 2. CRIMINAL REVISION NO.1437 OF 2010 DATE OF DECISION : .11.2011 Jaswinder Singh …Petitioner Versus State of Punjab and another …Respondents CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present : Mr. J.S.Bedi, Advocate, for the petitioners. (In CRR No.2512 of 2009) Mr. Vishal Munjal, Addl. Advocate General, Punjab Mr. Vikas Behl, Advocate, for the complainant. Mr. Vikas Behl, Advocate, Mr. C.L.Pawar, Advocate, for the petitioner. (In CRR No.1437 of 2010) Mr. Vishal Munjal, Addl. Advocate General, Punjab Mr. Bhupinder Singh Thind, Advocate, for the respondent No.2. (In CRR No.1437 of 2010) AUGUSTINE GEORGE MASIH, J. By this order I propose to dispose of Criminal Revision No.2512 of 2009 and Criminal Revision No.1437 of 2010, wherein the challenge is to the order dated 13.08.2009 passed by the learned Additional Sessions Judge, Rupnagar partly allowing application under Section 319 Cr.P.C preferred by the complainant Jaswinder Singh praying for summoning of five accused, namely, Bhupinder Singh, Amarjit Singh CRIMINAL REVISION NO.2512 OF 2009 -2- Jolly, Mohinder Singh, Lakhwinder Singh @ Lucky and Balwant Singh Majitha. Criminal Revision No.2512 of 2009 has been preferred by Bhupinder Singh, Amarjeet Singh Jolly and Mohinder Singh, who have been summoned to face trial as additional accused vide order dated 13.08.2009, whereas Criminal Revision No.1437 of 2010 has been preferred by the complainant Jaswinder Singh challenging this very order dismissing the application qua Balwant Singh Majitha. Brief facts of the case are that FIR No.177 dated 03.12.2007 was registered on the statement of Jaswinder Singh son of Hardeep Singh. According to which, on 02.12.2007 he along with Teja Singh Daburji went to bhog ceremony of Sandeep Kumar at Ghanoli on bullet motorcycle bearing No.PB-12J-7661. After the bhog ceremony, Teja Singh Daburji received a telephone call from one Harinder Singh @ Bonni (hereafter referred to as Bonny) and there was a conversation with regard to some land of Asara Colony at village Kotla Nihang on telephone. He along with Teja Singh Daburji reached at the Asara Colony in the evening at about 7:00 p.m. on the motorcycle. Teja Singh Daburji was carrying a sword. When they reached at the gate of Bonni at Asara Colony at village Kotla Nihang, they saw Bonny and Manjit Singh, who were already sitting on the chairs. They talked with each other, on which Teja Singh Daburji had a quarrel with Bonny and Manjit Singh. Manjit Singh and Bonny gave sword blows on the head and on the other parts of the body of Teja Singh Daburji. When complainant Jaswinder Singh came forward to save him, Bonny attacked him on both of his legs and head with the sword. He put forward his hand to save himself then the sword struck his hand. Teja Singh Daburji fell down at the spot. Complainant Jaswinder Singh ran away from the spot and he reached near the house of Rattan Singh and fell down there as he could not go any further due to CRIMINAL REVISION NO.2512 OF 2009 -3- injuries on his bodies and continued lying down there till the morning. In the morning, the owner of the house gave him water and by lighting some fire provided heat and thereafter, admitted him to Civil Hospital, Rupnagar, where he came to know that Teja Singh had died. Apart from Bonny and Manjit Singh, there were 5-6 other persons who reached the place of occurrence at that time when the fight was going on. He can recognize them if they come before him. This statement was recorded by Balwant Singh Majitha, Station House Officer, Police Station City Rupnagar, while he was admitted in Civil Hospital, Rupnagar. Prior thereto, an FIR No.176 dated 02.12.2007 was got registered by Bonny son of Dharam Singh at 09:30 p.m. According to his version, at about 7:00 p.m. Bonny and Manjit Singh were seating near the gate of Asra City, Rupnagar. One young man came on motorcycle with a sword hanging on his motorcycle. He opened the gate by hitting on it, entered and raised lalkara that I am Teja Singh Daburji Badmash. I have taken possession of many places and I had been sent by Lal Singh and have come to kill them. He took the motorcycle bearing Regd. No.PB-12-J-7661 inside, near the motor. About five persons were also coming behind him raising lalkara. Teja Singh threw his motorcycle and tried to hit Bonny complainant with his sword but he stepped back. Teja Singh fell down with the sword as he was drunk. Bonny snatched the sword from his hand and hit him on his head and again hit him on his right leg, upon which blood started oozing and when he tried to stand this Manjit Singh hit him with the stick, which was lying nearby. Teja Singh fell down. Bonny and Manjit Singh put him in a tractor trolley and got him admitted to the Civil Hospital, Rupnagar. Leaving him there with Manjit Singh while Bonny was going to the Police Station to inform the police, the police officials met him in the chowk Hole Road, Rupnagar. CRIMINAL REVISION NO.2512 OF 2009 -4- As the health of Jaswinder Singh, who was admitted in Civil Hospital, Rupnagar, was deteriorating, he was referred to PGI, Chandigarh where he was admitted and took treatment for about 15 days or so. In the meantime, Swaran Singh son of Sultan Singh and brother of deceased Teja Singh moved an application to the Superintendent of Police, District Rupnagar, praying for an investigation by some senior officer. During the inquiry conducted by Ashish Choudhary, IPS, Superintendent of Police (Detective), Rupnagar, Jaswinder Singh complainant in FIR No.177 dated 03.12.2007 made a supplementary statement wherein he stated that the statement recorded by Balwant Singh Majitha, SHO, Police Station City Rupnagar, while he was admitted in Civil Hospital Rupnagar was not so as to what he had stated and he had omitted certain vital facts. One of which was that he did not mention the names of Bhupinder Singh, Amarjit Singh Jolly and Mohinder Singh. In this statement dated 20.12.2007, he stated that on receipt of phone call from Bonny by Teja Singh in the evening at about 6:00 p.m. he and Teja Singh both went to village Kotla Nihang on motorcycle where sheets surrounded the land. One Skoda car bearing No.PB-39C-0110 was standing nearby. They stopped the motorcycle near the Skoda car. Bhupinder Singh came out of the car with a sword and held Teja Singh from his jacket and said “Ki Badmashi Hai ” and inflicted a sword blow on the head of Teja Singh. When the complainant Jaswinder Singh called him “Oye” then Amarjit Singh Jolly also gave a sword blow to Teja Singh and Bonny gave a sword blow on the right hand of the complainant Jaswinder Singh. Mohinder Singh gave Kulhari blow on the head of the complaint Jaswinder Singh and thereafter they made both Jaswinder Singh and Teja Singh to fell down on the road and started to cut them by CRIMINAL REVISION NO.2512 OF 2009 -5- giving blows with their respective weapons. Thereafter, Bhupinder Singh, Amarjit Singh Jolly, Bonny and Mohinder Singh and 10-12 other unknown persons dragged them in their land and gave more beating to them inside the land and gave sword blows and left them behind, believing them to be dead. Amarjit Singh Jolly said that they have died and throw them in the canal after cutting their necks, on which Bhupinder Singh asked the other person to call Majitha Sahib (SHO) and close their chapter. On hearing these words, Jaswinder Singh complainant started rolling towards the wall side and then went in the direction of Kotla Nihang village. They took a tractor and started searching and hurling abuses and saying that where would he go, if he is found then they would cut him and throw him in the canal. Jaswinder Singh complainant passed the night trembling with fear. When police came there at the spot then he did not call to anyone. On the next day at 7:00 a.m., he called the resident of nearby house, who was an old man who came out of the house and he demanded water from him. After drinking water, he told the old man that he was feeling very cold please light a fire around him otherwise he would die. Then they burnt some straw and thereafter police came there and took him to the Civil Hospital Rupnagar and got him admitted. Doctors put stitches on his hand, both legs, head, behind the right leg and referred him to the PGI, Chandigarh. He had come to get his statement recorded today with Swaran Singh son of Sultan Singh, Jathedar Bhag Singh and S. Simranjit Singh Mann, Joginder Singh President SAD, Amritsar and other 50-60 persons as he has danger from these persons that they may kill him at any time. He requested for providing Government protection. In the inquiry report (Annexure P-5) prepared by the Superintendent of Police (Detective), District Rupnagar, the allegations made by Swaran Singh, brother of the deceased Teja Singh that he was CRIMINAL REVISION NO.2512 OF 2009 -6- an eye witness, was found to be incorrect and the fact that Bhupinder Singh, Amarjeet Singh Jolly and Mohinder Singh were present at the spot, was also found to be incorrect. The allegations leveled against them were concluded to be without any basis and the accused persons, namely, Bonny, Manjit Singh, Harpreet Singh, Sandeep Singh, Sohan Singh, Gagandeep Shukla, Vikram Singh and Monty @ Rajesh were arrested and challan was presented against them on 16.02.2008. Charges were framed on 26.03.2008. This report was prepared by the Superintendent of Police (Detective), District Rupnagar during the pendency of trial. Prosecution during the trial recorded statements of Dr. Barinder Singh, Medical Officer, Civil Hospital, Rupnagar as PW-5, who had conducted the postmortem examination of the dead body of Teja Singh along with two other doctors and Dr. Harleen Kaur, Medical Officer, Civil Hospital, Rupnagar as PW-6, who had examined Jaswinder Singh complainant on his admission to the hospital. Examination-in-Chief and part cross-examination of complainant Jaswinder Singh son of Hardeep Singh was recorded as PW-9. When an application under Section 319 Cr.P.C was filed by the complainant for summoning accused Bhupinder Singh, Amarjeet Singh Jolly, Mohinder Singh, Lakhwinder Singh @ Lucky and Balwant Singh Majitha (SHO) to which reply was filed by the accused facing trial. Learned trial Court on consideration of the submissions made by the parties and considering the record came to the conclusion that a prima facie case was made out against four accused, namely, Bhupinder Singh, Amarjeet Singh, Mohinder Singh and Lakhwinder Singh @ Lucky as mentioned in the application and they were ordered to be summoned as additional accused to face trial for offence under Section 302, 307, 323, 324, 148, 149 IPC along with the accused, who were already facing trial. As no prima facie case was made out against Balwant Singh Majitha CRIMINAL REVISION NO.2512 OF 2009 -7- (SHO), the application made qua him was dismissed vide order dated 13.08.2009 by the learned Additional Sessions Judge, Rupnagar, which is under challenge in the present petition. It is the contention of the counsel for the petitioners in Criminal Revision No.2512 of 2009 that the petitioners Bhupinder Singh, Amarjeet Singh Jolly and Mohinder Singh were not named in the FIR nor any allegations were made against them. The supplementary statement dated 20.12.2007 given by the complainant Jaswinder Singh is an after thought and is after a period of more than 17 days from the date of occurrence which itself raises doubt about the credibility of the said statement. That apart, inquiry conducted by the Superintendent of Police (Detective), District Rupnagar is a detailed inquiry running into 144 pages (Annexure P-5), wherein it has been concluded that there is no truth in the allegations leveled against the petitioners and they were found to be innocent. Yet another inquiry was got conducted by the Additional Director General of Police (Crime) through a Special Investigating Team, which was headed by the Deputy Superintendent of Police (Rural), which report was submitted on 28.08.2008 (Annexure P-6) wherein again no truth was found in the allegations levelled against the petitioners and the findings returned by the Superintendent of Police (Detective) District Rupnagar was reiterated. In his statement before the Court as PW-9 dated 12.02.2009, the complainant has reiterated his version of 20.12.2007 (Supplementary statement) and has added the name of Lakhwinder Singh @ Lucky. As per the requirement of Section 319 Cr.P.C. there is no new evidence which has come on record which would persuade the Court to proceed against the petitioners. As per orders passed by the trial Court, the Court has not recorded conclusion that there are reasonable prospects of conviction but has only recorded CRIMINAL REVISION NO.2512 OF 2009 -8- therein that a prima facie case is made out against the petitioners along with one Lakhwinder Singh @ Lucky for summoning them as additional accused. He contends that the requirement of Section 319 stands culled out by the Supreme Court, which clearly requires something more than a mere apprehension of the Court or a prima facie case, which the Court has failed to record because of which the order cannot be sustained. Since the cross-examination of the complainant has not been concluded, the same cannot be termed as evidence under Section 319 Cr.P.C. and the said view, referred to the Larger Bench of the Supreme Court, could not have been relied upon by the trial Court for summoning the petitioners. Referring to the judgment of the Supreme Court in the case of Michael Machado Vs. Central Bureau of Investigation, 2000(3) SCC 262, he contends that strong suspicion is not enough to summon a person as an accused but there must be a satisfaction to be reached by the Court that there is all likelihood of conviction before proceeding against a person as an additional accused. In support of all these contentions, reliance has been placed by him on the judgment of the Supreme Court in the case of Brindaban Das and others vs. State of West Bengal, 2009(3) SCC 329, Sarabjit Singh and another vs. State of Punjab and another, 2009(3) R.C.R.(Criminal) 388, Mohd. Shafi Vs. Mohd. Rafiq and another, 2007(2) R.C.R.(Criminal) 762, Palanisamy Gounder and another Vs. State Represented by Inspector of Police, 2006(2) R.C.R.(Criminal) 235 and Sarojben Ashwinkumar Shah Etc. Vs. State of Gujrat and others, 2011(3) R.C.R.(Criminal) 852, on these submissions prayer has been made by the counsel that the impugned order deserves to be set aside. On the other hand, counsel for the complainant has submitted CRIMINAL REVISION NO.2512 OF 2009 -9- that the petitioners were very much present at the spot and had inflicted injuries in the presence and on the person of the complainant, Jaswinder Singh, as also the deceased Teja Singh. As a matter of fact, these petitioners are colonizers and very influential persons. Bonny and Manjit Singh have taken the blame on themselves to save the petitioners. Even Balwant Singh Majitha, S.H.O, Police Station City Ropar has connived with them and has not correctly recorded the statement which the complainant Jaswinder Singh had given at Civil Hospital, Rupnagar on 03.12.2007. He had specifically mentioned the names of Bhupinder Singh, Amarjeet Singh Jolly and Mohinder Singh and their role in the incident but that was intentionally omitted, an effort has been made by the investigating agency and the co-accused to shield the main culprit. The version given by Harinder Singh in FIR No.176 dated 02.12.2007 is not correct for the reason that the same does not explain the injuries on the person of deceased Teja Singh and complainant Jaswinder Singh. They do not match with the medical evidence whereas the statement given by Jaswinder Singh in Court clearly matches as also the supplementary statement given by him dated 20.12.2007. Reliance in support of this contention has been placed by the counsel for the complainant on the statement given by Dr. Brinder Singh PW-5 and Dr. Harleen Kaur PW-6. His further contention is that merely because the trial Court has failed to record that there is evidence on the record which is reasonable with possibility of conviction of the person sought to be summoned, is not sacrosanct. The intention of the Court has to be looked into and if the revisional court is satisfied that there is reasonable possibility of conviction of the person, sought to be summoned, the test and requirement of Section 319 Cr.P.C. stands fulfilled which in the present case would be so. He has relied upon the judgment of the Supreme Court CRIMINAL REVISION NO.2512 OF 2009 -10- in the case of Suman Vs. State of Rajasthan and another, 2010(1) SCC 250, to contend that if there is evidence collected/produced in the course of any inquiry into or trial of an offence and the Court is prima facie satisfied that such person has committed an offence for which he can be tried with other accused, it can proceed against such person(s) under Section 319 Cr.P.C. Reliance has been placed on the judgment of the Supreme Court in the case of Ram Pal Singh and others Vs. State of U.P. and another, 2009(2) SCC 423, to contend that for invoking his application under Section 319 Cr.P.C. if there is evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, such person should be tried together with the accused. It is the satisfaction and clear discretion of the Court to take a decision on the matter. Reliance has also been placed on the judgment of this Court in the case of Gurdev Singh Vs. State of Haryana and another, 2009(4) R.C.R.(Criminal) 515, to contend that merely because the cross-examination has not been concluded the same would not cease to be a piece of evidence which could be relied upon on an application under Section 319 Cr.P.C. Reliance has also been placed on the judgment of the Supreme Court in the case of Harbhajan Singh and another Vs. State of Punjab and another, 2009(3) R.C.R.(Criminal) 916, wherein the Supreme Court has held that the Court should not wait for the decision of the Larger Bench and what has to be seen is that whether the person to be summoned has also committed an offence and deserves to be tried with other accused. On this basis prayer has been made for dismissal of the Revision Petition and up-holding the summoning order qua petitioners. I have heard the learned counsel for both the parties and gone through the record of the case carefully. CRIMINAL REVISION NO.2512 OF 2009 -11- Before moving on to the case in hand, at this stage references need to be made to the judgment of the Supreme Court in the case of Sarojben Ashwinkumar Shah etc. (supra), where in para 16, considering various judgments delivered by the Supreme Court laying down the parameters for dealing with the application under Section 319 Cr.P.C. had culled out the same as follows:- “16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this : (i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word ‘evidence’ in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the chargesheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as CRIMINAL REVISION NO.2512 OF 2009 -12- accused, not being the accused before it, has been made out on the additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly – added persons shall be commenced afresh from the beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.“ In the light of the above, this Court need not refer to various judgment cited by the counsel for the parties during the hearing and discuss them as they also lay down the same proposition conclusion of which have been concisely laid out by the Hon’ble Supreme Court as above. Applying the above principles to the case in hand, it can be safely said that trial Court while passing the impugned order has applied its mind and exercised its judicial discretion within the guidelines as culled out by the Supreme Court from the material provision of Section 319 Cr.P.C. Statement given by Jaswinder Singh complainant before the trial Court would fulfil the test of the word ‘evidence’ mentioned in Section 319 CRIMINAL REVISION NO.2512 OF 2009 -13- Cr.P.C. It has not been exercised in a routine manner but the facts and circumstances of the case justify and warrant that the Court can proceed against the petitioners, who appeared to be guilty of offence. The statement given by the complainant Jaswinder Singh before the trial Court as PW-9 is fully supported and corroborated by the medical evidence produced by the prosecution, which has been referred to by the parties during the course of hearing and the statements produced in Court during the trial. It is the allegations of the complainant Jaswinder Singh that his statement has not been correctly recorded by the SHO Balwant Singh Majitha. His involvement is shown at the time of commission of offence thereafter, his visit to the spot along with other police officials at night and then further non-recording of the correct statement by him of the complainant in the Civil Hospital, Rupnagar when he was admitted there. Subsequent role has been attributed to each of the petitioners not only in the supplementary statement dated 20.12.2007 recorded by the Superintendent of Police (Detective) District Rupnagar, but has been reiterated before the trial