CRIMINAL REVISION NO.688 OF 2006 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 02, 2008 Jagnandan Singh .....Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Baljinder Singh & Mr. S. S. Dhaliwal, Advocates, for the petitioner. Mr. A. S. Brar, DAG, Punjab, for respondent No.1. Mr. Baldev Singh, Sr.Advocate with Mr. Arshwinder Singh, Advocate, for respondent No.2. Mr. Akshay Bhan, Advocate, for respondent No.3. **** RANJIT SINGH, J. (ORAL) This order will dispose of two Criminal Revision Nos.688 of 2006 (Jagnandan Singh Vs. State of Punjab and others) and 1576 of 2006 (State of Punjab Vs. Inderjit Singh @ Bhola and another). The facts are being taken from Criminal Revision No.688 CRIMINAL REVISION NO.688 OF 2006 :{ 2 }: of 2006. This case seems to be having some checkered history. A simple looking issue, concerning summoning of additional accused under Section 319 Cr.P.C appears to have been made complicated by one order or the other. In the present revision, the order impugned is dated 14.3.2006, whereby the Court has declined the prayer of the prosecution to summon, Surinder Kumar Changali and Inderjit Singh @ Bhola. Noticing the facts in brief, on 15.8.2003, Bhalinder Singh @ Bhalli was done to death while returning from his fields. This incident took place in the presence of Hardev Singh and Sukhpal Singh @ Leela. As per the allegations, Inderjit Singh @ Bhola was armed with Gandasa, Gurdeep Singh @ Bauji, who is the main accused facing prosecution, was allegedly armed with .315 bore rifle whereas Surinder Kumar Changli was armed with pistol. As per the allegations in the FIR, Surinder Kumar Changli raised lalkara saying that deceased Bhalinder Singh should not escape and he be taught a lesson for defeating Gurdeep Singh in the election of Sarpanch and for closing Surinder Kumar's godown and sheller. Gurdeep Singh allegedly fired a shot from his rifle, which hit deceased Bhalinder Singh under his left arm pit. The bullet made an exit from the other side. Surinder Kumar Changli fired a shot from his pistol, which ofcourse did not hit Bhalinder Singh but he fell down. Inderjit Singh gave a kick blow to Bhalinder Singh and moved his body by touching it from the side of Gandasa observing that he was dead. Thereafter, the accused persons ran away. After investigation, the police CRIMINAL REVISION NO.688 OF 2006 :{ 3 }: presented challan against Gurdeep Singh whereas Surinder Kumar Changali and Inderjit Singh @ Bhola were found innocent and their names were shown in Column No.2 in the report under Section 173 Cr.P.C. A charge against Gurdeep Singh was framed under Section 302 IPC. During the course of proceedings, Hardev Singh, PW1, was examined as a witness and thereafter the Public Prosecutor moved an application under Section 319 Cr.P.C. for summoning Surinder Kumar Changali and Inderjit Singh @ Bhola to face trial alongwith Gurdeep Singh. This application was allowed on 3.1.2004. Against this order, Surinder Kumar Changali filed Revision Petition No.232 of 2004 before this Court. As an interim measure, this Court directed the Trial Court to defer the hearing. Consequently, the case was adjourned from time to time and ultimately, the stay was vacated on 6.10.2005. Inderjit Singh @ Bhola also filed a Criminal Revision No.2245 of 2004 against the order summoning him as an additional accused. Once the stay was vacated, the charge was framed against all the three accused on 3.12.2005. They all pleaded not guilty. The prosecution had examined 7 witnesses and thereafter the case of prosecution was closed on 18.2.2006, after tendering into evidence the report of the Forensic Science Laboratory. The revision petitions filed by Surinder Kumar Changali and Inderjit Singh @ Bhola came up for hearing before this Court on 16.2.2006. This Court allowed the revisions with a direction to the Trial Court to re-consider the order summoning the additional CRIMINAL REVISION NO.688 OF 2006 :{ 4 }: accused, namely, Surinder Kumar Changali and Inderjit Singh @ Bhola. The operative part of the order passed by this Court is as under:- “In view of what has been stated above, I am of the considered opinion that the order dated 3.1.2004 summoning the petitioners should be set-aside. As a necessary corollary, the orders framing charge would also have to be set-aside as the charges were framed during the pendency of these petitions.” Thus, the order framing charge against all the accused was also set-aside and the Trial Court was directed to decide the application under Section 319 Cr.P.C. afresh. The Trial Court, on re- consideration, had dismissed the application moved by the prosecution for summoning Surinder Kumar Changali and Inderjit Singh @ Bhola as additional accused. This order is now impugned by the petitioner on behalf of the complainant, who is not a stranger but father of the deceased. Notice in this case was issued and counsel representing the parties have been heard. Mr.Baljinder Singh and Mr.S.S.Dhaliwal, learned counsel representing the petitioner, have referred to the facts in detail and so also the evidence, which had necessitated the filing of this petition to urge that there is sufficient material placed on record to satisfy the legal test laid down for summoning respondent Nos.2 and 3, as additional accused. This prayer, however, is opposed by counsel representing respondent Nos.2 and 3. Mr.Baldev Singh, learned CRIMINAL REVISION NO.688 OF 2006 :{ 5 }: Senior counsel appearing for Surinder Kumar Changali (respondent No.2), has raised many fold submissions. He would first submit that the evidence that is led by the prosecution would not be sufficient to satisfy the test of summoning the said respondent as an additional accused as per the law laid down by the Hon'ble Supreme Court. He has referred to the ratio of law as laid down in Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr., 2000 (2) RCR (Criminal) 75 to contend that evidence is not such to say that there is hope of prospect of conviction of Surinder Kumar Changali. He accordingly says that the Court has rightly declined to summon Surinder Kumar Changali. Elaborating further, learned counsel has said that during investigation, it was found that Surinder Kumar Changali was not present at the scene of incident and his plea of alibi was established on the basis of sufficient documents on record. Counsel says that this would render the evidence infirm and make it insufficient for hope of prospect of conviction and hence, respondent No.2 can not be ordered to be summoned as an additional accused. The counsel has raised another argument that Hardev Singh, PW1, who is a complainant in this case, is no more and hence, would not be available for the purpose of examination or his cross-examination. The counsel, thus, accordingly contends that this would be an added reason to view that this evidence would not be sufficient to satisfy the standard of law once Hardev Singh would not be available for cross-examination after Surinder Kumar Changali is added as an accused. According to the counsel, the prosecution is CRIMINAL REVISION NO.688 OF 2006 :{ 6 }: left with solitary witness to rely upon, whose evidence would be lacking to satisfy the standard laid down by the Hon'ble Supreme Court. Counsel for the petitioner, however, would seriously join issue with the counsel for respondent No.2 and would point out that before application for summoning the respondents was made, PW1 had not only been examined in-chief but had also been cross- examined. Not only that, it is also pointed out that after the stay order passed by this Court was vacated, respondents, Surinder Kumar Changali and Inderjit Singh @ Bhola, were joined as additional accused, they had participated in the trial and had even cross-examined PW1. In fact, the entire evidence has now been recorded with due participation of both these respondents and the final order in this case has not been passed in view of the stay granted by this Court now. Counsel for respondent No.2, however, would still insist in submitting that evidence of this witness, though cross-examined on behalf of the respondents, can not be taken into consideration as the counsel for the respondents was forced to cross-examine the witness despite the fact that respondents were not the accused facing prosecution as the order for adding them as additional accused had been set-aside on 16.2.2006 and witness was cross- examined on 18.2.2006. As per the counsel, this Court allowed the revision petition filed by respondent Nos.2 and 3 on 16.2.2006 and the cross-examination of PW1 was done on 18.2.2006. He accordingly contends that on 18.2.2006, Surinder Kumar Changali CRIMINAL REVISION NO.688 OF 2006 :{ 7 }: and Inderjit Singh @ Bhola were not the accused before the Court and any act on their part to cross-examine the witness would not be legal and is to be excluded from consideration. I am afraid I will not be able to accept this line of submissions made by senior counsel for respondent No.2. It can not be disputed or denied that the witness has been cross-examined on behalf of Surinder Kumar Changali and Inderjit Singh @ Bhola. For summoning an additional accused what is required to be seen is that there is evidence, which may not even be subjected to cross- examination. This Court in Criminal Revision No.2126 of 2007, decided on 20.12.2007, has already considered this aspect in the light of the law laid down in Mohd. Shafi Vs. Mohd. Rafiq and another, 2007 (2) RCR (Criminal) 762. It has been held in Criminal Revision No.2126 of 2007 as under:- “The ratio that can be culled out from the above observation of the Hon’ble Supreme Court is that no exception can be taken where the trial Court is of the view that the application should receive its consideration only after conclusion of the cross-examination. It is the discretion to be exercised by the trial Court and if the Court is of the view that such discretion should only be exercised after conclusion of cross-examination of a witness, obviously there can not be any exception taken to this approach. From this and the above observation of the Hon’ble Supreme Court, it would not be possible to contend that any binding precedent is being set in this CRIMINAL REVISION NO.688 OF 2006 :{ 8 }: judgment that additional accused can only be summoned upon conclusion of the cross-examination of a witness. The High Court order was set-aside with the observation that no exception can be taken where the trial Court wishes to arrive at its satisfaction after the cross- examination is over.” Stage has now reached to consider if these two persons, namely, Surinder Kumar Changali and Inderjit Singh @ Bhola can be summoned on the basis of evidence on record or not. For that purpose, even if the witness has not been cross-examined, still it would have been open for the Court to summon a person as an additional accused. The position, however, in the present case is altogether different. Here, not only the witness was cross-examined before the application was moved but he was further cross-examined on behalf of present respondents as well. This Court may have set- aside the order summoning these persons with a direction for the Court to re-consider the issue but necessarily such an order, will not lead to obliterating/removing the evidence which has come on record. It is not a case of inherent lack of jurisdiction to render the evidence recorded by the Court to be inadmissible. Where there is lack of inherent jurisdiction and Court has recorded evidence or where a Court records evidence in a case where it has no jurisdiction and court is coram non-judice or where deposition is recorded by a Court, constitution of which is declared ultravires, then such evidence may not be admissible for use. Present one is not a case of this nature. CRIMINAL REVISION NO.688 OF 2006 :{ 9 }: The court had the jurisdiction to try the respondents, who were legally added as additional accused. The order was set-aside only for re-consideration. Thus, it is not a case of inherent lack of jurisdiction. Evidence to summon a person as an additional accused is always recorded in his absence as is the scope of Section 319 Cr.P.C. It is only on the basis of evidence so recorded that the court decides to either allow or dis-allow such a prayer. No doubt, the person so added as an additional accused gets right to cross-examine such a witness. This right is already exercised by respondent No.2, who had legally been joined as an additional accused. Even if the witness had died prior to his cross-examination being conducted and after completion of his examination-in-chief, this evidence would have been admissible but the degree of weight to be attached to it would have depended upon the circumstances of the case. The Court then may have taken into account the fact that the accused person did not get a right to cross-examine the witness concerned. In Srikishun Jhunjhunwalla Vs. Emperor, AIR 1946 Patna 384, it has been held that where a witness died after examination-in-chief and before cross-examination, his evidence is admissible but the degree of weight to be attached to it would depend upon the circumstances of the case. Thus, once a witness has been examined and cross- examined fully but happens to die before completion of the trial, it is considered as a complete evidence. It is held that in such like case, a party can not even be permitted to rely upon any previous statement under Section 32 of Evidence Act as complete evidence of the witness is available before the Court. Lastly, if the earlier order CRIMINAL REVISION NO.688 OF 2006 :{ 10 }: passed by this court is pressed into service to say that respondent No.2 was not the accused before the Court on the day cross- examination of the witness was conducted on his behalf, then the present order passed by the Court can lead to a situation that he was always present before the Court as an accused even on the day, the said witness was cross-examined as now the order passed by Trial Court as well as earlier order passed by this Court would give way to the present order being passed today. Section 33 may also come into play for relevancy of certain evidence for proving in subsequent proceedings, the truth of facts stated therein. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later state of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without any amount of delay or expense, which under the circumstances of the case, the Court considers unreasonable. Thus, to say that non- availability of the witness, who is dead, especially so when his examination and cross-examination is over, would not be a ground that this evidence can not be taken into consideration. Even otherwise, it would be for the Court to see the effect of the death of the witness and if he would be needed for any further cross- examination on behalf of the respondents, who are sought to be added as additional accused. On this ground it can not be said that CRIMINAL REVISION NO.688 OF 2006 :{ 11 }: the material is not available on record to summon these persons as additional accused. It is now to be seen whether the evidence, which has been led before the court, would be sufficient to summon Surinder Kumar Changali and Inderjit Singh @ Bhola as additional accused or not. The role attributed to Surinder Kumar Changli has been noticed and referred to by learned counsel for the petitioner. From the evidence given by PW1, it is seen that Surinder Kumar Changli, on seeing Bhalinder Singh, raised a lalkra that Bhalinider Singh (the victim) should not escape and be taught a lesson to get his sheller and godown closed and for defeating him in the Panchayat election. Thereafter, Gurdeep Singh fired a shot from his .315 bore rifle, which hit Bhalinder Singh on his left flank. It is further alleged that Surinder Kumar Changli fired a shot from his pistol, though it did not hit deceased Bhalinder Singh. It is on this basis pleaded that there would be sufficient evidence, which was even tested by cross- examination to join Surinder Kumar Changli as an additional accused. The Hon'ble Supreme Court in Michael Machado's case (supra), has held that unless the Court is hopeful that there is a reasonable prospect of conviction of the accused summoned as additional accused, the Court should resist from the action of joining an additional accused. It is to be seen if on the basis of this evidence, it can be viewed that there is a hope of reasonable prospect of conviction of Surinder Kumar Changli. The Court, in my view, has not exercised the discretion in terms of law laid down on the subject. This evidence, which is tested by cross-examination CRIMINAL REVISION NO.688 OF 2006 :{ 12 }: would appear to satisfy the test as laid down by the Hon'ble Supreme Court for adding Surinder Kumar Changli as an additional accused. Accordingly, that part of the order under revision can not be sustained. Much was made by the counsel that the plea of alibi of respondent No.2 was established on record and it would create doubt regarding the evidence against the said respondent. Reference here may be made to Y.Saraba Reddy Vs. Puthur Rami Reddy & Anr., 2007 (2) RCR (Criminal) 1014, where somewhat similar submission canvassed was rejected by the Hon'ble Supreme Court. A plea of alibi was accepted by investigating officer and report submitted. Name of the accused was deleted. The witness gave evidence before the Court involving said accused. The Court rejected the application under Section 319 Cr.P.C which was upheld by the High Court. Hon'ble Supreme Court, while allowing the appeal observed as under:- “If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purpose of Section 319 of the Code it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is CRIMINAL REVISION NO.688 OF 2006 :{ 13 }: unsustainable.” So far as the case of Inderjit Singh @ Bhola is concerned, it is alleged that he gave a kick blow to Bhalinder Singh while he was lying on the ground and then he moved his body with the nudge of Gandasa, which he was carrying and said that he is dead. Will this evidence is sufficient to summon Inderjit Singh @ Bhola is a question? Since the Court has earlier summoned him and has now taken a different view, it may require to be analyzed whether this evidence could be considered sufficient to satisfy the test of law as laid down in Michael Machado's case (supra). In my considered opinion, the view formulated by the Trial Court that the evidence against this accused is not sufficient is a view which is possible. A different view may also be possible but that would not be a ground to interfere in exercise of revisional jurisdiction. The evidence may not satisfy the test of hope of a conviction as laid down by the Hon'ble Supreme Court in Michael Machado's case (supra) as viewed by the Trial Court. In fact, in Rajendra Singh Versus State of U.P. and anr. 2007 (3) RCR (Criminal) 1021, it has been held that the court need not be satisfied that the accused has committed an offence and even if it appears that he has committed an offence, that would be sufficient to summon the person as an additional accused. Accordingly, I would up-hold the impugned order to the extent whereby the Court has declined to summon Inderjit Singh @ Bhola as an additional accused. However, the part of order whereby the Court has refused to summon Surinder Kumar Changli CRIMINAL REVISION NO.688 OF 2006 :{ 14 }: (respondent No.2) can not be sustained and the same is set-aside. Respondent No.2 shall stand summoned as an additional accused. The parties, through their counsel, are directed to appear before the Trial Court on the date fixed, who will proceed further with the matter in accordance with law in terms of the order passed in the present criminal revision petitions. The revision petitions are disposed of in the above terms. December 02,2008 ( RANJIT SINGH ) khurmi JUDGE