CRM NO.M-16448 OF 2010 -1- IN THE HIGH COURT OF PUNJAB OF HARYANA AT CHANDIGARH ***** CRM NO.M-16448 OF 2010 DATE OF DECISION : 15.02.2012 Amarjit Singh …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present : Mr. Mansur Ali, Advocate, for the petitioner. Mr. Vishal Munjal, Additional Advocate General, Punjab. Mr. Preetinder Singh Ahluwalia, Advocate, for the complainant. AUGUSTINE GEORGE MASIH, J (ORAL). Challenge in this petition is to the order dated 22.05.2010 (Annexure P-6) passed by the Additional Sessions Judge, Patiala vide which the application moved by the complainant under Section 216 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C’) has been allowed and petitioner has been ordered to be summoned in order to face trial and for framing charge against him. It is the contention of the counsel for the petitioner that on an application moved under Section 216 Cr.P.C for altering the charge against the other co-accused who have been committed to face trial by the Magistrate, petitioner could not be summoned by the Additional Sessions Judge except in exercise of powers under Section 319 Cr.P.C especially when there was no evidence before the Court which would authorize the Court to summon the petitioner to face trial as till that stage no eye witness had been examined by the prosecution and only Dr. Gyan Singh, PW-1, had been examined. He has placed reliance upon the CRM NO.M-16448 OF 2010 -2- judgment of the Supreme Court in the case of Ranjit Singh Vs. State of Punjab, AIR 1998 Supreme Court 3148 to contend that once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching the stage of evidence when powers under Section 319 Cr.P.C can be invoked. On the other hand, counsel for the respondent has placed reliance upon the reference made to the Larger Bench of three Judges’ Bench of the Supreme Court doubting the decision in Ranjit Singh’s case (supra), in case of Dharam Pal and another Vs. State of Haryana and another 2006(2) R.C.R (Criminal), 75. It has further been contended that even if the judgment of the Supreme Court in Ranjit Singh’s case (supra) still holds the field, this Court in exercising its inherent or revisional powers can direct the committing Magistrate to rectify the committal order by issuing process to the left out accused in this case. I have heard counsel for the parties and gone through the records of the case. Briefly the facts of the case are that an FIR was registered against the petitioner and other co-accused by complainant-Balwinder Singh. As per the allegations in the FIR, the complainant was standing in his house along with one Binder Singh son of Chand Singh when petitioner Amarjit Singh, who was armed with a kirpan and Karam Singh son of Ram Chand with a rod and and another Amrik Singh son of Pritam Singh carrying soti and Sohan Singh son of Jaggar Singh armed with a rod came near the complainant and Binder Singh and asked them as to why they were standing there. Complainant replied that they were standing in their house and why should they have any objection. At this, CRM NO.M-16448 OF 2010 -3- petitioner attacked the complainant with a kripan which hit him on his head. Karam Singh attacked the complainant with the iron rod which hit on the upper part of his left ear. Amrik Singh gave a soti blow on the complainant's left arm. Sohan Singh attacked the complainant with the rod in his stomach. When Binder Singh came forward to save the complainant, Amrik Singh hit him with the soti on the vest. Sohan Singh attacked Binder Singh and gave a blow on his left thigh. Thereafter, Amrik singh gave another blow on the complainant which hit him on the lower side of the neck. They cried for help then mother of the complainant Bib Kaur and his aunt Taro Devi along with Nirmal Singh son of Gurinder Singh came there to save them. They were attacked by Taro wife of Pritam Singh, Jagtar Singh son of Roop Singh, Ram Chand son of Lalu Ram, Roop Singh son of Jaggar Singh, Hans Raj son of Mukhtiar Singh and Des Raj son of Jaggar Singh, who came there and started throwing stones which were lying there, on the complainant party. To save themselves the complainant party also hit them back with the stones/brick bats thrown on them. Due to the stones thrown by the accused party, mother of the complainant Bib Kaur, his aunt Taro Devi and Nirmal Singh son of Gurinder Singh suffered injuries. The other side also suffered some injuries. When the accused party saw people collecting there, they left the spot along with their arms. Complainant and his family members were admitted in Rajindera Hospital, Patiala where they were under treatment when this statement was recorded by the police. On conclusion of the investigation, report was filed by the police in Court in which the petitioner was found to be innocent and therefore, no challan was filed against him. Magistrate on consideration of the same and by complying with the provisions of the Cr.P.C CRM NO.M-16448 OF 2010 -4- committed the case to face trial. Charges against the accused were framed under Section 323 read with Section 149 of the Indian Penal Code (hereinafter referred to as ‘the IPC') by the Additional Sessions Judge, Patiala vide order dated 09.01.2010 (Annexure P-3). Trial commenced where statement of PW-1 Dr. Gyan Singh was recorded, who was not an eye witness to the occurrence but was the Doctor who had examined the complainant and other injured and had corroborated the allegations of the complainant in the FIR and the weapons used in inflicting injuries on the complainant and others. It is at this stage that an application dated 10.03.2010 was filed by the complainant under Section 216 Cr.P.C praying for altering the charge by adding Section 324 and 307 IPC. On considering the said application, the trial Court proceeded to alter the charge against the accused facing trial but further summoned the petitioner as an accused to face trial and for framing the charge against him under Section 324 IPC. It is at this stage that the petitioner has approached this Court challenging the order passed by the Additional Sessions Judge, Patiala on the ground that the Sessions Judge did not have any power under the Cr.P.C to permit addition of new person or persons to the array of accused once the Court has taken cognizance of the offence pursuant to the committal order especially when the stage for invoking powers under Section 319 has not still been reached. The only prosecution witness, which has been examined is a Doctor, who has deposed with regard to the injuries which were found on the person of complainant and other injured. He is not an eye witness and therefore, could not depose with regard to the role or injuries inflicted by the petitioner. There being no evidence available on record against the petitioner which would stand the test of invoking the powers under Section 319 Cr.P.C, in the light of the judgment of the Supreme Court in CRM NO.M-16448 OF 2010 -5- the case of Ranjit Singh (supra) the impugned order cannot sustain and therefore, deserves to be set aside. I have with the assistance of the counsel for the parties gone through the FIR and the challan which has been placed on record and I am of the considered view that this is a fit case where this Court should invoke its inherent powers and direct the committing Magistrate to rectify the committal order by issuing process to petitioner Amarjit Singh son of Lalu Singh. The law laid down by the Supreme Court in Ranjit Singh's case (supra) in paras 21 and 22, reads as follows:- “21. Another instance can be this, all the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of accused due to some inadvertence or omission. Should the Court wait until evidence is collected to get that person arraigned in the case? 22. Though such situation may arise only in extremely rare cases, the Sessions Court is not altogether powerless to deal with such situations to prevent miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left out accused. But we hasten to add that the said procedure need be resorted to only for rectifing or correcting such grave mistakes.” Details of the role of the petitioner and his involvement in the commission of the crime is not being discussed and elaborated herein intentionally lest it causes any prejudice to the petitioner before the trial Court. Suffice it to say that prima facie it appears that the petitioner is involved in the commission of the offence. CRM NO.M-16448 OF 2010 -6- In view of the above present petition is allowed. Impugned order dated 22.05.2010 (Annexure P-6) is hereby quashed. Direction is issued to the Chief Judicial Magistrate/ committal Magistrate to rectify the committal order by issuing process to the petitioner. On doing so the Sessions Court shall proceed with the case, in accordance with law. 15.02.2012 (AUGUSTINE GEORGE MASIH) adhikari JUDGE