Balwinder Singh vs State of Punjab

S.S. Sodhi, J.

The Case relating to the alleged murder of Harbans Singh, deceased, was committed to the Court of Sessions. Balwinder Singh and Mohinder Singh who had been ascribed a role in this murder were not challaned and their names were instead shown in column No. 2. Before the framing of the charge against the accused the complainant moved an application under section 319 of the Code of Criminal Procedure (hereinafter referred to as `the Code'') seeking the arraigning of Balwinder Singh and Mohinder Singh as accused along with others committed to the Court of Session. For the reasons recorded in the impugned order, the application 319 of the as code as also the other Section 395(2) of the Code were dismissed, but being seized of the case in the light of material available against the petitioners in the documents and record submitted under section 173 of the Code, the learned Sessions Judge ordered the petitioners to be summoned as accused. It is this order which was sought to be challenged on the ground that no person could be summoned as an accused except under section 319 of the Code and in terms thereof, a person can be summoned as an accused only after some evidence has been recorded in the course of the trial against the accused committed for trial. This challenge can no longer be sustained in view of the judgment of the Division Bench of this Court in Lal Chand and another v. State of Haryana, 1983(2) RCR(Crl.) 587 (P&H) : Crl. Misc. No. 3837M of 1981.

The question which arose for consideration in Lal Chand''s case (supra) was whether the Court of Session without itself recording evidence could summon a person to stand trial as an accused (along with others committed to it by a Magistrate) on the basis of documents and the final report of the Investigating Officer under Section 173 of the Code. This question was answered in the affirmative. The view expressed being that "once a court of competent jurisdiction, be it a Magistrate or the Court of Session, takes cognizance of the offence, it is not only within the court''s power to summon any one who on adequate material appears to it so be prima facie guilty of the said offence, but indeed it is its duty to do so".

Further, following the judgments of the Supreme Court in Hareram Satpathy v. Tikaram Agarwala and Others, AIR 1978 Supreme Court 1568 and Joginder Singh and another v. State of Punjab and another, AIR 1979 Supreme Court 339, it was stated "it seems to follow that a Magistrate trying a warrant case as also a court of session having once validly taken cognizance of the offence on the basis of a police report (when considering the materials before it for framing a charge), is not only entitled but indeed duty bound to summon a person as an accused to stand trial before it, if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent up as such".

The challenge to the impugned order on the ground that the court lacked jurisdiction to summon the petitioners as accused cannot be sustained in view of the observations of the Division Bench in Lal Chand''s case (supra)

It needs to be clarified however, that in view of the provisions of section 227 of the Code, it would be open to the petitioners to show that there are no grounds for proceeding against them and if the Judge is so persuaded, he would undoubtedly be acting within the power and authority vested in him under this section in discharging them, of course for reasons to be recorded. If, however, the Judge is not so persuaded the provisions of Section 228 of the Code would come into play.

With these observations this petition is hereby dismissed.