Amarjit Singh alias Amba vs The State of Punjab and another

D.S. Tewatia, J.—The primary question that falls for determination in this case is as to whether a person named in the F.I.R. as an accused and challaned by the police but discharged by the Magistrate u/s 239, Cr.P.C. could be considered to be a person not being an accused and summoned by the very Court by virtue of the provisions of section 319, Cr.P.C. to be tried along with other accused.

For appreciating the somewhat significant law question posed above, it needs noticing only a few relevant facts which can be stated thus:--

Three person namely Amarjit Singh alias Amba, the petitioner herein, Jaswainder Singh alias Chama and Balram Singh were challaned by the police u/s 326 read with section 34, I.P.C. The trial court after considering the relevant documents i.e. F.I.R. statements u/s 161, Cr.P.C. etc. held that no case was made out against Amarjit Singh alias Amba and vide order dated 2.7.1981, discharged him. When the trial proceeded against the other two accused and one of the witnesses namely Santosh Kumar complainant in her examination-in-chief attributed a positive act of criminality to Amarjit Singh, the prosecution moved an application for summoning Amarjit Singh as an accused to face the trial alongwith other two accused The Chief Judicial Magistrate vide him order dated 25.1.1982 dismissed the application. This order was challenged in revision petition before sessions Judge, Ropar, who by his order dated 14.6.1982 set aside the order dated 25.1.1982 and granted the application of the prosecution for summoning Amarjit Singh as an accused. It is this order which has been impugned by the petitioner through the present petition on two grounds, inter also (1) that unless the order dated 2.7.1981, whereby the petitioner was discharged by the trial court is set aside the petitioner could not be summoned as an accused in the case (ii) That mere examination-in-chief statement of Santosh Kumar cannot be considered evidence which could be taken into consideration for deciding as to whether the person implicated is to be summoned or not.

On behalf of the State it is being urged that provisions of section 319 Cr.P.C. enabled the court, to summon a person who was not an accused before it, for trying him as an accused in the case alongwith other accused and that petitioner Amarjit Singh hiving been discharged by the trial Magistrate he was not an accused either when the trial of the remaining accused commenced or at the stage at which the prosecution moved an application for summoning him as an accused in the case. Support for the aforesaid submission was sought from a Supreme Court decision reported in Joginder Singh and Another Vs. State of Punjab and Another, .

In the aforementioned case the facts were that the police out of persons named in the F.I.R. had challaned only three and the names of other two persons were mentioned in column No. 2 as being innocent. The trial Magistrate committed for trial only the three accused who had been challaned Later on in view of the evidence adduced by the prosecution during the trial of the said accused, the Sessions Court summoned the two accused who bad not been committed by the committing court One of the questions that arose in that case was as to whether provisions of section 319, Cr.P.C. could be resorted to by the Sessions Court to summon the two accused. Point convassed before their lordship was that any person who was an accused in the case stood excluded from its purview. It was stressed that a person named in the F.I.R. as an accused, even, though released by the police u/s 169, Cr.P.C and shown in column No. 2 of the charge sheet shall have to be considered an accused and thus did not fall within the purview of section 319, Cr.P.C. Their Lordships repelled the contention with the following observations:--

As regards the contention that the phrase "Any person not being the accused" occuring in S. 319 excluded from its operation an accused who has been released by the police u/s 169 of the Code and has been shown in column No. 2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purposes of enacting such a provision like section 319/(1) clearly shows that even person who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression.

Mr. Ujagar Singh, counsel for the petitioner, sought to distinguish Joginder Singh''s case (supra) on the ground that in that case no judicial order had been passed by the trial Magistrate as there was only an administrative order u/s 169, Cr.P.C. and not an order u/s 239, Cr.P.C. learned counsel canvassed that an order u/s 239, Cr.P.C. unless set aside would bar the prosecution attempt to resummon the petitioner as an accused. He cited Binod Behari Behera v. Niranjan Sahu (1979) 47 C.L.T. 477 for the proposition that a discharge order u/s 239, Cr.P.C. is final judicial order and not a provisional or interlocutory order and the Magistrate is barred from reviewing it u/s 362, Cr.P.C.

Relevant portion of Section 319, Cr.P.C. is in following the terms:--

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.

The expression ''not being the accused'' occuring in section 319 Cr.P.C. immediately gives rise to two queries (i) ''not being the accused'' before which court (ii) and at what stage. Section 319, Cr.P.C. authorises a Court to summon a person as an accused if the evidence before it shows that such person had committed any offence for which he could be tried together with the persons who are already being tried as an accused. That means till such time evidence of the kind is before the Court the question of summoning a person not being the accused does not arise, so, it would be at the stage when the evidence is being adduced before the Court that it would consider that the person implicated by the evidence is being tried as an accused before it or not. If such a person is not being tried as an accused, then that Person can be summoned to be so tried even though that very court earlier had discharged him u/s 239 Cr.P.C. on the basis of the material placed before the Court in the form of report u/s 173 Cr.P.C.

Perusal of the observations of their Lordships in Joginder Singh''s case (supra) would reveal that their Lordships have emphasised the fact as to whether at the stage when the accused is being summoned by the court was he being tried as an accused before it or not. According to their Lordships anybody who was not being tried as an accused before the Court is a person who is not an accused before the court and thus could be summoned as an accused on the basis of the evidence implicating him in the crime.

Mr. Ujagar Singh, counsel for the petitioner, then argued that the order of the Sessions Judge, Ropar, deserves to be quashed on the ground that there was no complete statement of the only witness examined by the prosecution when the application for summoning the petitioner was made before the Trial Magistrate and the incomplete statement cannot amount to evidence in terms of Section 319, Cr.P.C. and in support of his submission he placed reliance on a Single Bench Decision of this Court rendered in Criminal Mis. No 5484-M of 1980, (Gamdoor Singh v. State of Punjab Crl. Misc. No. 5484-M of 1980) decided on 17th December. 1981, and drew pointed attention to the following observations of Tiwana, J : --

However, it has to appear from the evidence before the Magistrate that any person not being the accused has committed any offence for which he could be tried together with the other accused. This argument of the learned counsel for the petitioner must prevail that unless, the statement of Subhash Chander had concluded it could not be termed "evidence". The word "evidence" appears to have been used in section 319 of the Code as meaning admissible evidence. The statement of Subhash Chander in the examination in-chief alone cannot be said to be such "evidence" upon which the Magistrate could act.

Before noticing the facts of that case, the facts of the present case as mentioned in the petition may be noticed.

It was immediately after the statement of Santosh Kumari in examination-in-chief was recorded and before she could be cross-examined, the prosecution filed the present application for summoning the accused.

In the case before Tiwana, J position was also identical There also the Magistrate had recorded the examination-in-chief of one Subhash Chander P.W. and then on that incomplete statement summoned person accused in that case. The summoned person challenged that order in Cr. M. No. 5484 of 1980 in this court and the same was allowed. I entirely concur in the view that Tiwana, J. has taken.

In the result, the direction of the learned Sessions Judge, Ropar, in the order that the trial Magistrate is competent to summon the petitioner herein as accused despite the earlier discharge order u/s 239, Cr.P.C. is sustained, so the question posed at the very outset is answered in affirmative. However, the further direction to allow the application of the prosecution is quashed and the impugned order is modified to that extent with the result that the trial Magistrate shall complete the statement of Santosh Kumari by giving opportunity to the accused already standing trial to cross-examine her. However, it may be observed that in case the accused already standing trial declines to cross examine the said witness then her statement in examination-in chief itself would constitute a complete statement and the same shall be considered evidence in terms of section 319, Criminal Procedure Code Thereafter, the trial Magistrate shall consider the application of the prosecution for summoning the petitioner as accused on the basis of the completed statement of Santosh Kumari. The petition stands disposed of accordingly.