Balwinder Singh and Another vs The State of Punjab

S.S. Kang, J.—This is an application u/s 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the order dated July 17, 1981 of the learned 1st Additional Sessions Judge, Ferozepore, whereby he has summoned the petitioners Balwinder Singh and Gurbachan Singh to stand trial in a case u/s 307 of the Indian Penal Code. This case was registered on the statement of Faquir Singh. He has stated in the first information report that on May 31, 1980 at about 8 P.M. he and Prem Singh were sitting at their house and were talking about the casting of votes in the election. They then went out of the house and saw Gurbachan Singh, Balwinder Singh Petitioners, Gurdev Singh and Mohinder Singh residents of village Dhindsa standing outside Balwinder Singh was armed with his licenced gun He shouted that Faquir Singh had not voted for Congress. Faqir Singh replied that he was free to exercise, vote for the party he liked. Mohinder Singh raised a lalkara. Balwinder Singh fired at Faqir Singh hitting him on the abdomen and ribs. A second shot was fired Some pellets hit Faquir Singh and some of them hit Prem Singh who had turned back in the meantime Faqir Singh fell down. Mohinder Singh gave lathi blows and kick blows to Prem Singh. Gurdev Singh also fired with a country-made pistol. A case was registered u/s 307, Indian Penal Code against the above mentioned accused.

Mohinder Singh and Gurdev Singh accused had also suffered injuries in this occurrence. A cross case was registered against Faqir Singh, Ram Singh, Sube Singh and Arjan Singh under Sections 326/324/34, Indian Penal Code.

After thorough investigation, Balwinder Singh and Gurbachan Singh petitioners were found to be innocent, and they had been falsely involved in the case A challan u/s 307/34, Indian Penal Code was presented against Mohinder Singh and Gurdev Singh. However, the names of the petitioners were shown in column No. 2 of the report. The learned Magistrate committed only Mohinder Singh and Gurdev Singh to stand their trial before the Sessions. Judge. The case was entrusted to the 1st Additional Sessions Judge. Ferozepore for trial. Faqir Singh and Prem Singh moved an application on July 2, 1981 with a prayer that the petitioners be summoned as accused. The learned Judge allowed this application and vide order dated July, 17, 1981 summoned both the petitioners as accused to face the trial along with the two accused already before him. No evidence was recorded by the learned Additional Sessions Judge before summoning the petitioners as accused. Aggrieved by this order the petitioners have filed this petition.

Mr. R.S. Bindra, the learned senior counsel appearing for the petitioners has argued that if during the course of trial it appears to the Court from the evidence recorded, that any person who is arraigned as an accused has committed any offence for which, such a person could be tried along with the accused already standing trial the Court can Summon such a person as an accused. He argued that the Court can Summon such a person only if it appears to it from the evidence that has been recorded by that time that any other person is guilty of a crime may be tried by it. Unless some evidence has been recorded, the Court cannot summon any person as an accused. He submitted that this contention is supported by the language of sub-sections (1) and (4) of Section 319, Criminal Procedure Code. In Sub-section (1), it is clearly mentioned that the trial Court would summon any person as an accused only if it appears to it from the evidence that such a person has committed the offence. Sub-section (4) further lays down that where the Court proceeds to summon such, person, the proceedings in respect of that person shall be started afresh and the witnesses reheard. According to the learned counsel, a combined reading of these two subsections makes it manifest that the powers u/s 319, Criminal Procedure Code can be exercised only after some evidence has been recorded. Evidence means only the statements of witnesses recorded by a Court.

In order to appreciate the arguments raised by the learned counsel for the petitioners, it will be appropriate to notice the provisions of Section 319, Criminal Procedure Coda at the very outset. It reads as under:-

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 subsection (i), then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;

(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.

A bare perusal of the above statutory provisions makes it clear that the trial Court can proceed against a person who is not an accused before it, only on the basis of evidence. If, there is no evidence already recorded, the Court cannot proceed against a person and summon him as an accused. The language of Sub-section (4) indeed lends support to the contention of the learned counsel. It Clearly provides that when a person who is not arraigned as an accused is summoned by the trial Court, then the proceedings in relation to that person shall commence afresh and the statements of the witnesses shall be re-heard. The learned State counsel tried to argue that the statements recorded u/s 161 Cr. P.C. can be looked into by the learned trial Judge and on that basis alone he can summon any person as. an accused if such a person appears to have committed an offence being tried by that Court. There is no merit in this contention. The language of Sections 319 and 209 Cr. P.C. is quite different. Section 209 provides for the commitment of the accused to the Court of Session to stand trial. In this Section, it is specifically provided that the learned Magistrate can commit the accused brought before him, to stand his trial before the Court of Sessions, if it appears to the learned Magistrate that the offence is triable exclusively by the Court of Sessions. However, in Section 319 Cr. P.C., it is specifically provided that the learned trial Judge would proceed to summon any person as an accused only on the basis of evidence. The statements u/s 161 Cr. P.C. cannot be deemed to be evidence by any cannons of interpretation.

From the above discussion, it is clear that the trial Judge can summon any person who is not arraigned as an accused to appear before him and stand trial as an accused in a case already being tried only on the basis of evidence recorded by such Court. In the absence of such evidence no person can be summoned as an accused to stand his trial merely on the basis of the statements recorded under Sections 161 or 164 of the Code of Criminal Procedure. It is the admitted case of the parties that the statement of no witness had been recorded when the petitioners were summoned to stand their trial as accused. The order of the learned trial Judge is, therefore, clearly illegal. I set aside this order and discharge the petitioners. However, it will be open to the learned trial Judge to proceed in the matter in accordance with law. This judgment will not be a bar to proceed against the petitioners, but in accordance with law.