Crl. Revision No. 74 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 74 of 2007 (O&M) Date of decision: May 24, 2010 Kashmir Singh and others ...Petitioners Versus State of Punjab and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. JS Thind, Advocate, for the petitioner. Mr. AS Brar, Sr. DAG, Punjab, for respondent No.1. None for respondent No.2. GURDEV SINGH, J. Petitioners-Kashmir Singh, Jagir Singh and Baldev Singh, have preferred this revision petition against the order dated 7.12.2006 passed by the Chief Judicial Magistrate, vide which they were summoned as additional accused to stand their trial, alongwith other accused, for the offences under Sections 419, 420 and 120-B IPC. The facts, in brief, are that Darshan Singh son of Atma Ram- respondent No.2/complainant got lodged FIR No. 32 dated 19.3.2004 under Sections 419, 420, 467, 471 and 120-B IPC in Police Station Gharinda, Amritsar, against the present petitioners and other accused. He narrated therein that he and others owned land measuring 10 acres in village Gharind, Tehsil and District Amritsar. Kashmir Singh, Jagir Singh, Baldev Crl. Revision No. 74 of 2007 2 Singh and Balwinder Singh, by producing false witnesses and by making impersonation as Harnam Singh and Dhanwant Singh, got the lease deed No. 4157 executed on 3.8.1998. In fact, Harnam Singh and Dhanwant Singh had died before the partition of the country in Pakistan itself. That lease deed was signed by Harbhajan Singh and Massa Singh as attesting witnesses. The investigation was conducted and it was found that Dhanwant Singh and Harnam Singh were related to Darshan Singh and Kashmir Singh etc. and were owners of the land in dispute, as per the entries in the revenue record. It was also found that the lease deed was false and fabricated document. After completion of the investigation, the challan was presented only against Balwinder Singh and Massa Singh. The trial court framed the charge against these persons. In the course of the investigation , statement of Arjan Singh was recorded as PW-1. An application was filed under Section 319 of the Criminal Procedure Code (hereinafter referred to as 'the Code'), for summoning the present petitioners as additional accused, and they were summoned as such, vide aforesaid order. Notice of the revision was given to the respondents. The same has only been contested by the State counsel, whereas, no one came present on behalf of respondent No.2/complainant. I have heard learned counsel for both the sides. It has been argued by learned counsel for the petitioners that the order in question is illegal and incorrect. The petitioners have been summoned merely on the ground that prima facie offences have been made out against the petitioners. During the investigation, they were found to be innocent and, as such, the order could have been passed only on the ground that the evidence produced during the trial was sufficient to convict them. Crl. Revision No. 74 of 2007 3 The order was passed on the statement of Arjan Singh (PW-1) who made vague statement against the present petitioner. It cannot be concluded from his statement that they committed any such offence. The trial court should have recorded some other evidence before passing such order as the solitary statement of Arjan Singh cannot be made the basis of conviction of the petitioners. The discretion to summon the petitioners should have been exercised with caution and not merely on the ground that a passing reference was made to these petitioners by one of the prosecution witnesses. In support of his contentions, he placed reliance upon the following judgments:- (i) Michael Machado & Anr. Versus Central Bureau of Investigation & Anr. 2000 (2) RCR (Criminal) 75; (ii) Y. Saraba Reddy versus Puthur Rami Reddy and another 2007 (2) RCR 1014; and (iii) Kailash versus State of Rajasthan and another 2008 (2) RCR (Criminal), 200. On the other hand, it has been submitted by learned State counsel that though in the order the trial court mentioned that prima facie offences are made out against the petitioners, yet it is very much clear from the statement of Arjan Singh (PW-1) that conviction of the petitioners can certainly be recorded on the basis thereof. The discretion was properly exercised by the trial court and there is no ground for upsetting the well reasoned order. The provisions of Section 319 of the Code have been critically analyzed by the Hon'ble Supreme Court and this Court from time to time. Those have been interpreted differently at different times. It was held in Crl. Revision No. 74 of 2007 4 Satpal versus Rajbir and others 1990 (2) Recent Criminal Reports, 284 that under Section 319 of the Code, the Court has the power to add any person not an accused before it, as an accused and direct him to be tried alongwith the other accused for the offence which such added person appears to have committed from the evidence recorded at the trial. The words “it appears from the evidence that any person not being the accused has committed any offence” appearing in the said section are very significant and provide a key to the proper construction of the same. On their plain meaning all that they connote is that there must be some legal evidence on the record showing involvement of any person other than the accused before the Court in the commission of an offence. Of course, the evidence must be sufficient to make out a prima facie case against such a person and satisfy all the essential ingredients, constituting the offence for which he is sought to be prosecuted. However, the Court at that stage is not called upon to evaluate or appraise the evidence with a view to assess, whether the evidence is sufficient for his ultimate conviction. The evidence on the record should be sufficient to show that any person other than the accused before the Court is also concerned in the commission of crime. Thus, the sufficiency of evidence has to be looked at, for the purpose of framing a charge and not with an eye on the ultimate conviction of such a person. That is the precise reason why sub-section (4) of Section 319 of the Code requires that the proceedings in respect of such persons shall be commenced afresh and the witnesses re-heard. Similar question came up for consideration before the Hon'ble Supreme Court in Michael Machado's case (supra). It was held therein that the basic requirement for invoking this section is that it should appear to the Crl. Revision No. 74 of 2007 5 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 the offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. It was further held therein that but even then what is conferred on the Court is only a discretion as can 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 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 remembered that there is no compelling duty on the Court to proceed against other person. The Hon'ble Supreme Court in Mohd. Shafi versus Mohd. Rafiq and another 2007 (2) RCR (Criminal) 762, held that while exercising the discretion in terms of Section 319 of the Code, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. In Kailash's case (supra), it was held by the Hon'ble Apex Crl. Revision No. 74 of 2007 6 Court that the discretion under Section 319 has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. The same matter again cropped up before Hon'ble the Supreme Court in Hardeep Singh versus State of Punjab and others 2008 (4) R.C.R. (Criminal), 947. All the important judgments on that aspect were taken notice of and in view of the fact that there was uncertainity in proposition of law, the following two questions were referred for consideration to the Bench of three Hon'ble Judges:- (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 ? Even after that reference was made, this very proposition was dealt with by the Hon'ble Supreme Court in Suman versus State of Rajasthan and another 2010 (1) Criminal Court Cases 269. In that case, it was held 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 Crl. Revision No. 74 of 2007 7 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.” The proposition, as emerges from all this discussion, is that Section 319 of the Code is a special provision. It seeks to meet an extraordinary situation. Though it confers a power of wide amplitude, yet it is required to be exercised very sparingly. The same should be exercised only when the compelling reason exists for taking action against the person against whom action had not been taken earlier. There is no compelling duty on the Court to proceed against the other persons. If a person has not been charge sheeted, he may come within the purview of description of such a person, as contained in Section 319 of the Code. Mere existence of prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas a prima facie view may be sufficient for taking cognizance of evidence. However, 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, the Court must consider the entire Crl. Revision No. 74 of 2007 8 material on the record to form an opinion that the evidence, if unrebutted, would lead to a judgment of conviction. Still a higher standard is set up for the purpose of invoking jurisdiction under Section 319 of the Code. The ingredients thereof viz (i) an extraordinary case (ii) a case of sparingly exercise of jurisdiction, should be satisfied. There must be possibility of the accused being convicted on the basis of evidence brought on the record before he can be summoned as additional accused. It is not, therefore, that merely because some witnesses have mentioned the name of a such person or that there is some material against that person with description, under Section 319 of the Code, the inherent power would be used by the Court. No doubt, in this case, the petitioners were found to be innocent by the investigating agency but merely on that ground it cannot be held that they cannot proceeded against, after the evidence has been produced against them during the trial regarding their involvement in the commission of the offences complained of. In the present, the impugned order has been passed on the basis of the statement of Arjan Singh (PW-1). For the proper appreciation of the matter, relevant portion of the statement of that witness is re-produced below:- “We are owners of 10 acres of land according to Jamabandi for the year 1986-87 which has been got transferred by Kashmir Singh, Jagir Singh, Baldev Singh in their name on 3.8.1991 by producing imposters. They have stated that the lease deed has been executed by Harnam Singh, Dhanwant Singh, but who have died at the time of freedom in Pakistan. Photocopies I have attached. Harbhajan Singh Nambardar and Massa Singh Crl. Revision No. 74 of 2007 9 are the witness. We had given an application the police station but we were not heard. Balwinder Singh and Massa Sigh are present in the court, others are not present. Ex. PA is the application given to the police on which I had affixed my thumb impression.” There is no dispute about the fact that the Chief Judicial Magistrate in his order mentioned that prima facie offences are made out against the petitioners and summoned them on that ground. The use of such words is no ground for upsetting the order. The Court is to find if the conviction of the petitioners can be based on the evidence produced before it. It is well settled proposition of law that conviction of the accused can be based even on the solitary statement of a witness, if the same is found to be trustworthy and credible. The conviction of the petitioners can certainly be recorded on the statement of the above said witness, if the same remains unrebutted. No doubt the discretionary power under Section 319 is to be exercised sparingly and with due circumspection but it is not the spirit of the law that any guilty person should be escape merely on the ground of technicalities. It is not just a passing reference about the petitioners which has been made in the statement of the witness. He has categorically stated that the land was got transferred by the petitioners in their names by producing imposters, who impersonated as Harnam Singh and Dhanwant Singh, who had already died much before the execution of the lease deed. The order passed by the trial court does not suffer from any illegality nor it can be said to be incorrect nor it can be held that the proprietary required that such order should not have been passed. Therefore, the same cannot be interfered with while exercising revisional Crl. Revision No. 74 of 2007 10 jurisdiction. The revision petition is dismissed accordingly. May 24, 2010 (GURDEV SINGH ) prem JUDGE