Balwinder Singh vs State of Punjab and Another

Daya Chaudhary, J.—The present revision petition has been filed against order dated 14.11.2009 passed by learned Additional Sessions Judge, Ludhiana, vide which an application filed by the prosecution u/s 319 Cr.P.C. for summoning Swaran Singh has been dismissed.

Learned Counsel for the petitioner submits that not only name of Swaran Singh was mentioned in the FIR but a specific role has also been attributed to him. He further contends that the complainant in his examination-in-chief as well as in cross-examination has stated that Swaran Singh had fired a gun shot upon deceased, was armed with Double Barrel gun and also raised a lalkara and being member of unlawful assembly has committed murder which is a very serious offence. It has also been argued by learned Counsel for the petitioner that learned Additional Sessions Judge has wrongly dismissed the application of the prosecution on the ground that the complainant had merely reiterated the allegations which have been made at the time of registration of the FIR. Learned Counsel for the petitioner also relied upon the judgments of Hon''ble the Apex Court in the case of 2002 (1) ACR 419 (SC) , Geeta Ram v. VediRam, (2002) 10 SCC 499 , Anil Singh v. State of Bihar 2006 (13) SCC 421, of this Court in Court of its own motion v. State of Haryana 2002 (1) RCR (Criminal) 252 and of Bombay High Court in Sambhaji Kendre and Smt. Sindhu Devidas Kendre Vs. The State of Maharashtra and Shri Nivrutti Nagoba Baswante, to support his contention.

I have heard the arguments advanced by learned Counsel for the petitioner and have also gone through the impugned order.

The FIR in this case was registered on the basis of statement made by complainant-Balwinder Singh naming Amandeep Singh @ Amna, Sukhjinder Singh @ Nikka and Swaran Singh. During investigation, Swaran Singh was found innocent and was kept in column No. 2 of the report u/s 173 Cr.P.C. An application was moved u/s 319 Cr.P.C. for summoning of Swaran Singh on the ground that as per allegations in the FIR, gun shot was fired by him and lalkara was also raised by him and the police had found him innocent wrongly. The application was dismissed by Additional Sessions Judge, Ludhiana on the ground that although the allegation was there regarding firing of gun shot but no such gun was ever taken into possession and no bullet or cartridge either from the place of occurrence or from the dead body of Harjit Singh was recovered. Moreover, it has also been held that nothing new came out from the evidence of the complainant in Court or before police and it was simply a reiteration of the earlier statement of complainant-Balwinder Singh on which basis Swaran Singh was found not involved in the crime. The Additional Sessions Judge has also held that even from the statement of Balwinder Singh (PW-1), it appears that efforts were made to rope Swaran Singh being closely related to accused-Amandeep Singh @ Amna. Statement of Charanjit Singh and Gurmeet Kaur u/s 161 Cr.P.C. were also recorded on the next day, which could not be relied upon and moreover that evidence is not sufficient which would reasonably lead to the conviction of Swaran Singh.

It is well settled law by this Court as well as Honble the Apex Court that a person should be summoned to face trial if a prima facie case is made out against him and when the Court finds that evidence on record is such that it would reasonably lead to conviction of that person sought to be summoned. This view has been supported by the judgment of Honble the Apex Court in Sarabjit Singh and Anr. v. State of Punjab and Anr. 2009 RCR (Criminal) 388, wherein, it has been held that extraordinary power has been conferred on the Courts and should be used very sparingly and only when compelling reasons exist for taking cognizance against whom the action has not been taken. Honble the Apex Court in the case of Michael Machado v. CBI 2000 (2) RCR (Criminal) 75 has observed as under:

The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused.

But even then, what is conferred on the Court is only a discretion as could be discerned from the words the Court may proceed against such person.. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against each other persons.

In the present case, complainant-Balwinder Singh (PW-1) had given an account of the incident more or less on the same lines as has been given in the statement made before the police with regard to presence of accused. He has stated that when his father had sent him for bringing Rehra one Innova Car, white colour, passed by that road came and when he went a few steps further, he heard noise of fire shot and saw accused Amandeep Singh @ Amna, Sukhjinder Singh @ Nikka and Swaran Singh alongwith three more unidentified persons coming out from the said Car. Amandeep Singh @ Amna was armed with 315 bore rifle, Sukhjinder Singh @ Nikka was armed with revolver and Swaran Singh was armed with .12 bore DBBL rifle. Swaran Singh raised lalkara and told Amandeep Singh that Harjit Singh had killed his grandfather so he should not be spared. Then accused Amandeep Singh @ Amna, Sukhjinder Singh @ Nikka and Swaran Singh fired shots at deceased-Harjit Singh and ran away from the spot. In cross-examination, Balwinder Singh (PW-1) denied even the suggestion that accused-Swaran Singh was away to his fields and was getting the transformer repaired. Even no such gun was taken into possession or dispatched to the office of FSL for examination to ascertain whether any shot was fired from that gun or not. No bullet or cartridge either from the place of occurrence or from the dead body of Harjit Singh was recovered.

In the present case, an inquiry was conducted by SP (D) and he visited the place of occurrence and recorded statements of witnesses. The inquiry was approved by S.S.P. In evidence before the Court, the complainant repeated the name of the accused and summoning on this ground was set aside as no cogent and sufficient reasons were assigned to summon the accused. Summoning cannot be done on the evidence already inquired and on the basis of that evidence he was found innocent. Complainant Balwinder Singh in his statement before the Court has given more or less the same account of incidence. Power to summon a person as an accused can be exercised only on the basis of fresh evidence before the Court and not on the basis of material which had been collected during investigation as Section 319 Cr.P.C. contemplates evidence of the witness in the Court. This view has been supported by Hon''ble the Apex Court in Sarabjit Singh''s case (supra). This extraordinary power conferred on the Court should be used sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action had not been taken. In this case, neither the bullet nor any cartridge from the place of occurrence or from the dead body of deceased was found. All this has been considered in the investigation and Swaran Singh was not found involved in the occurrence in any manner. The petitioner has not brought any fresh evidence before the Court to summon accused-Swaran Singh.

It is clear from the facts as well as proposition of law as mentioned above that Swaran Singh could not be convicted only on the basis of statement made by Balwinder Singh in Court as the same is reiteration of the facts mentioned in the FIR. Accordingly, there is no merit in the present revision petition and the same is dismissed.