IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No.34174 -M of 2009 DATE OF DECISION : MAY 06, 2010 SIMER KAUR ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ANR. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. PS Ahluwalia, Advocate, for the petitioner(s). Ms. Rajni Gupta, Addl.AG, Punjab. Mr. BS Saroha, Advocate, for respondent No.2. AJAI LAMBA, J. (Oral) This petition under Section 482, Code of Criminal Procedure, has been filed for quashing of case FIR No.106 dated 23.10.1997 under Sections 307, 450, 34, Indian Penal Code, and Sections 25/27 of the Arms Act, 1959, Police Station, Hariana, District Hoshiarpur, and consequent proceedings. The facts, in brief, are that the petitioner was arrayed as an accused in the above mentioned FIR, along with Manjit Singh and Sukhwinder Singh, for inflicting injuries on the person of complainant/respondent No.2-Rupinder Singh. As per the prosecution case, no injury has been attributed to the petitioner or Sukhwinder Singh. Criminal Misc. No.34174 -M of 2009 2 The allegation of inflicting the injuries is only against Manjit Singh. On 6.1.1998, final report under Section 173, Code of Criminal Procedure, was prepared, where from it is brought out that the petitioner and Sukhwinder Singh were found innocent, as no incriminating material could be collected against them. Challan was presented only against Manjit Singh, who was nominated as the accused. The petitioner, being a British citizen and having been exonerated by the Investigating Agency under Chapter XII of the Code of Criminal Procedure, returned to her country on 3.3.1998. It seems that the petitioner and Sukhwinder Singh were summoned under Section 319, Code of Criminal Procedure, in view of the fact that their names figured in the FIR and statements recorded under Section 161, Code of Criminal Procedure, vide order dated 16.3.1998 (Annexure P-3). Learned counsel for the petitioner, at this juncture, contends that the order of summoning, per se, is illegal insomuch as the prosecution witnesses were not even examined and, yet, the petitioner and Sukhwinder Singh were summoned while exercising jurisdiction under Section 319, Code of Criminal Procedure. There was no evidence before the trial court, as envisaged under Section 319, Code of Criminal Procedure, to enable the court to invoke the jurisdiction. Reference has been made to the judgment of the Hon'ble Supreme Court of India in Y. Saraba Reddy v. Puthur Rami Reddy and another, 2007(6) JT 460. The petitioner was throughout abroad and was not aware of the development, as noticed above, viz. that the petitioner had been Criminal Misc. No.34174 -M of 2009 3 summoned under Section 319, Code of Criminal Procedure. The petitioner was declared a Proclaimed Offender on 18.7.1998. It is the specific case of the petitioner that service had not been effected on the petitioner, as the petitioner had been living aboard. The petitioner was not aware that she was required to face trial as an additional accused. In regard to legality/illegality of the order declaring the petitioner Proclaimed Offender, learned counsel for the petitioner relies on the judgment of this court rendered in Mehar Singh and another v. State of Punjab, 2010 (2) RCR (Criminal) 167. It has been brought out that trial of co-accused of the petitioner resulted in conviction of Manjit Singh, who has been sentenced. Sukhwinder Singh, who had been summoned along with the petitioner under Section 319, Code of Criminal Procedure, as an additional accused, has been acquitted. In this regard, reference has been made to the judgment of the trial court dated 30.9.1999 (Annexure P-5), rendered by Additional Sessions Judge, Hoshiarpur. It seems that Manjit Singh carried an appeal to this Court, which has been decided vide judgment dated 26.5.2004 (Annexure P-6), passed in CRA 1001-SB of 1999. The acquittal of co-accused Sukhwinder Singh was challenged by way of filing a revision by the complainant. The revision has been dismissed, thereby acquittal of Sukhwinder Singh, who is similarly placed as the petitioner, has been upheld. Learned counsel for the petitioner contends that, at this juncture, other than the fact that the case of the petitioner is at par with Criminal Misc. No.34174 -M of 2009 4 that of Sukhwinder Singh and initiation of proceedings against the petitioner would cause unnecessary harassment, the disputes between the parties have been settled by way of amicable settlement, placed on record as Annexure P-7. It has also been pointed out that there was another case, which was pending between the parties. The matter, in view of the compromise between the parties, has been quashed, as would be evident from order dated 19.11.2009 (Annexure P-8), rendered in CRM 26677-M of 2009 (Nirbhay Singh and another vs. State of Punjab and another). The contention of the learned counsel for the petitioner is that in view of the compromise, the proceedings in the present case also need to be quashed. The other contention of the learned counsel for the petitioner is that order dated 16.3.1998 (Annexure P-3) under which the petitioner is being asked to stand trial, passed while exercising power under Section 319, Code of Criminal Procedure, is void and, therefore also, the relief prayed for in the petition is required to be given to the petitioner. Learned counsel for the petitioner further states that, at best, the case of the petitioner is at par with that of Sukhwinder Singh, who also did not cause any injury on the person of the complainant, as per the prosecution case. Sukhwinder Singh has been acquitted and his acquittal has been upheld by this Court and, therefore also, no purpose, in law, would be served by continuance of proceedings against the petitioner. Learned counsel for respondent No.2/complainant contends that, indeed, all the disputes between the parties have been settled by way of compromise (Annexure P-7). It has been admitted in the compromise that the petitioner was not served at United Kingdom address and, yet, Criminal Misc. No.34174 -M of 2009 5 was declared a Proclaimed Offender. The facts and circumstances, as placed in the present case, have been admitted. The complainant prays for termination of the litigation, in view of the compromise. It has specifically been stated in the compromise deed that all the witnesses and the victim have executed the compromise without any fear or undue influence. I have considered the contentions of the learned counsel for the parties. From the above noticed facts and circumstances, I find that the proceedings against the petitioner in the FIR case culminated in a report, wherein the petitioner was not nominated as an accused. Having been assured that no proceedings are pending against the petitioner, the petitioner went abroad. The petitioner was summoned under Section 319, Code of Criminal Procedure, without there being any evidence taken by the court. In this view of the matter, order (Annexure P-3) clearly is illegal, in view of the law laid down by the Hon'ble Supreme Court of India in Y. Saraba Reddy's case (supra). For ready reference, paras 12 and 13 are extracted below:- “12. On a careful reading of Section319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, 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. It is further evident that such person even though had initially Criminal Misc. No.34174 -M of 2009 6 been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as 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 contained in the charge sheet or the case diary do not constitute evidence. Of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, 1990 (3) RCR (Criminal) 610 : (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing. 13. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court. Under Sub-section (4)(1)(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. That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.” The petitioner could not have been declared a Proclaimed Offender as the petitioner was abroad at the point in time when the Criminal Misc. No.34174 -M of 2009 7 petitioner was summoned to stand trial as an additional accused under Section 319, Code of Criminal Procedure,. The proclamation under Section 82, Code of Criminal Procedure, could have been issued only against the petitioner if the court had a reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself or herself and that a warrant cannot be executed. In the case in hand, the petitioner was already abroad at the point in time when she was summoned. The petitioner clearly was not aware that she was required to appear. In such circumstances and also in view of law laid down in Mehar Singh's case (supra), I hold that order dated 18.7.1998 (Annexure P-4), declaring the petitioner Proclaimed Offender, is illegal. The case of the petitioner, without doubt, is similar to the case of Sukhwinder Singh, insomuch as no injury had been attributed to Sukhwinder Singh in the FIR case. Even Sukhwinder Singh was not nominated as an accused in the final report under Section 173, Code of Criminal Procedure, filed by the Investigating Agency. Sukhwinder Singh was summoned along with the petitioner under Section 319, Code of Criminal Procedure. Sukhwinder Singh faced trial and has been acquitted vide judgment of the trial court dated 30.9.1999 (Annexure P-5). The complainant filed a revision petition against the acquittal of Sukhwinder Singh, which has been dismissed by this Court. Compromise between the parties has also been filed and the complainant is no more aggrieved by any action of the petitioner. Other than this, the other litigation between the parties has also been settled amicably, as would be evident from order (Annexure P-8), passed by this Criminal Misc. No.34174 -M of 2009 8 Court in CRM 26677 of 2009 decided on 19.11.2009. When the peculiar facts and circumstances of the case, as noticed above, are collectively considered, I am of the opinion that no purpose, in law, would be served by asking the petitioner to face trial at this juncture, which has to result in acquittal of the petitioner. Other than this fact, the very inception of the case against the petitioner by virtue of order dated 16.3.1998 (Annexure P-3), passed under Section 319, Code of Criminal Procedure, is illegal insomuch as it was passed contrary to the law, as settled by the Hon'ble Supreme Court of India in Y. Saraba Reddy's case (supra), a portion whereof has been extracted above. The petitioner could not have been summoned as there was no evidence before the court to exercise jurisdiction under Section 319, Code of Criminal Procedure. The petition is, accordingly, allowed. FIR No.106 dated 23.10.1997 under Sections 307, 450, 34, Indian Penal Code, and Sections 25/27 of the Arms Act, 1959, Police Station, Hariana, District Hoshiarpur and subsequent and consequent proceedings are hereby quashed. May 06, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest?