Crl.Misc. No. M-6082 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: August 18, 2010 Crl. Misc. No. M-6082 of 2008 Asif ali Khan ...........Petitioner Versus State of Punjab and another ..........Respondents Crl. Misc. No. M-229 of 2008 Himanshu Jain ...........Petitioner Versus State of Punjab ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Harsh Aggarwal,Advocate for the petitioners. Mr.Amandeep Singh Rai,Assistant Advocate General,Punjab Mr. J.S.Bhatia, Advocate for respondent No.2 ** Sabina, J. Both the above-mentioned Crl.M.Nos. M-6082 of 2008 & M-229 of 2009 are taken up because the order challenged in both the petitions is Crl.Misc. No. M-6082 of 2008 2 the same. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.) seeking quashing of complaint dated 22.8.2006 (Annexure P5) passed by the trial Court in case FIR No. 214 dated 30.8.2004 registered under Section 420 of the Indian Penal Code (for short `IPC') at Police Station Malerkotla. The contents of the FIR (Annexure P2) read as under:- “1. That accused no.1 was originally owner in possession of a shop area measuring 15.8/9 sq.yards bearing municipal no. B- 16/894 bounded as under:- East Shop of Neeraj Kumar, West:- Shop of Smt. Raj Dulari, North:Shop of Raj Dulari South:- Road, situated at Bana Bazar, Malerkotla on the basis of sale deed no.2821 dt. 6.11.1987. 2.That the accused no.1 on dt. 18.6.2004 entered into an agreement to sell with applicant agreeing to sell the said shop in favour of the applicant for the lump sum amount of Rs.8,80,000/- and received a sum of Rs. 50,000/- in cash as earnest money from the applicant agreeing to execute and get registered the sale deed of said shop in favour of the applicant or his nominee on receipt of remaining sale amount. An agreement to sell was duly reduced into writing between the applicant and accused no.1 which was attested by marginal witnesses on dt. 18.6.04. Date fixed for registration of sale deed was 31.8.2004.2.That since 1866/04 the applicant has been ready and willing to perform his part of the said agreement to sell and requested the accused no.1 time and Crl.Misc. No. M-6082 of 2008 3 again by showing him the said agreement and remaining sale amount to accept the same and to execute and get registered the sale deed of said shop in favour of the applicant as per terms of said agreement but the accused no. 1 has been putting off the applicant on the one or the other pretext. 3. That the accused no. 2 and 3 were all aware of the agreement to sell mentioned above. 4. That on 11.8.2004 the accused no.1 has sold the said shop in favour of the accused no.2 and 3 through a registered sale deed in an illegal and unlawful manner of which he had no right. 5. That the accused have thus cheated the applicant and have committed an offence which falls within the purview of Sec. 420 IPC for which they deserve punishment. It is thus prayed that a criminal case u/s 420 IPC may kindly be registered against the accused and they be got punished according to law for the offence committed by them.” Petitioners are accused no. 2 and 3. After investigation of the case, challan was presented against accused-Dalip Jain. Petitioners were kept in column No.2. During the pendency of the trial, an application was moved by the prosecution for summoning the petitioners as additional accused under Section 319 Cr.P.C. Vide the impugned order, the said application was allowed. Hence, the present petition. After hearing the learned counsel for the parties, I am of the opinion that the instant petitions deserve to be allowed. A perusal of the FIR reveals that the allegations against the petitioners are that they had purchased the shop in question on 11.8.2004. In order to defeat the right of the complainant, the petitioners Crl.Misc. No. M-6082 of 2008 4 had connived with other co-accused- Dalip Jain, who had earlier executed an agreement to sell in favour of the complainant. However, the petitioners were found innocent during investigation. The petitioners are bonafide purchasers for consideration. There is nothing on record to suggest that the petitioners had not paid any consideration at the time of the execution of the sale deed in their favour. Complainant has filed a suit for specific performance qua the agreement to sell executed by Dalip Jain in his favour. 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- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; Crl.Misc. No. M-6082 of 2008 5 (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.” Thus, the trial Court has the power to summon a person as an additional accused when in the course of trial it appears from the evidence that the said person not being an accused had committed any offence for which such person could be tried along with other accused. However, in the present case, the trial Court has erred in summoning the petitioners to face the trial as accused. The petitioners are bona fide purchasers for consideration. They were found innocent during investigation. Accordingly, these petitions are allowed. The impugned order dated 22.8.2006 is set aside. ( Sabina ) Judge August 18, 2010 arya