Chanan vs State of Punjab

N.K. Agrawal, J.

This is a petition under Section 482 Code of Criminal Procedure, for quashing the order dated May 19, 1990 passed by the Additional Chief Judicial Magistrate, Hoshiarpur, and the order dated September 17, 1990 passed by the Sessions Judge, Hoshiarpur.

First Information Report No. 131, dated October 26, 1986, was registered at P.S. Sadar Hoshiarpur, under Sections 326, 452 and 34 Indian Penal Code, against Chanan and two others. Chargesheet was filed by the Police after investigation in the court of Additional Chief Judicial Magistrate, Hoshiarpur. The petitioner, Chanan, was not named in the chargesheet as an accused. The other two persons, Santokh Raj and Sat Pal, were arrayed as accused persons therein. The statement of the complainant, Nathi, was recorded by the learned Magistrate on May 19, 1990. Chanan was ordered to be summoned as an accused in the case, on an application filed by the Public Prosecutor.

None has appeared on behalf of the petitioner.

Shri R.S. Virk, learned Assistant Advocate General, Punjab, has been heard.

The objection raised in the petition is that there was no legal evidence before the learned Magistrate on the basis of which Chanan was ordered to be summoned as an accused. Cognizance could be taken by the trial court against any person under Section 319, Code of Criminal Procedure, on the basis of some evidence in the eye of law. The statement of Nathi was recorded by the learned Magistrate but it was incomplete because crossexamination of the witness had not been completed. Only the examinationinchief of the witness had been recorded by the learned Magistrate. The evidence was, therefore, not complete and was not legally admissible for the purposes of Section 319, Code of Criminal Procedure. In the absence of crossexamination of Nathi, the mere examinationinchief was neither sufficient nor was in the nature of legal evidence.

Shri R.S. Virk, learned Assistant Advocate General, has argued that the evidence of Nathi (PW2), was recorded by the learned Magistrate and, on the basis of the evidence, it was noticed that Chanan was involved in the offence. Nathi, PW2, had alleged in his evidence, before the court, the Chanan had raised `Lalkara''. Nathi corroborated his statement recorded by the police under Section 161, Code of Criminal Procedure. The participation of Chanan in the offence was, therefore, primafacie, shown. The name of Chanan found its mention in the F.I.R. also as well as in the statement under Section 161, Code of Criminal Procedure. Shri Virk has further informed that counsel for the remaining two accused was present in court at the time of evidence of Nathi but the counsel deferred the crossexamination of the witness when the Public Prosecutor filed an application in the Court for summoning Chanan as an accused. Since examinationinchief of the complainant, Nathi, constituted valid and legal evidence in the eye of law, there was no legal bar against the cognizance taken by the learned Magistrate under Section 319, Code of Criminal Procedure. Opportunity to crossexamine Nathi was given by the court to the counsel representing the other two accused persons. The counsel, however, opted to defer the crossexamination till the witness was recalled after appearance of Chanan in the Court as an accused. Mere absence of cross examination of the witness would not render his evidence nugatory. The evidence of the witness was recorded in the presence of the other two accused persons. There was no denial of opportunity to crossexamine the witness.

A question regarding the appreciation of evidence once arose before the Allahabad High Court in Ambika Singh v. State, AIR 1961 Allahabad 38. A witness had not been crossexamined. It was observed that the court is not precluded from assessing the veracity of the witness even in the absence of his crossexamination.

Allahabad High Court had again an occasion to examine a matter of the summoning of a person as an accused under Section 319, Code of Criminal Procedure, in Margoobul Hasan v. State of U.P., 1988 Crl. L.J. 1467. There also, a person was summoned as an accused by the Additional Sessions Judge in the Sessions trial pending in his court under Section 307, Indian Penal Code. An application was moved by the State under Section 319, whereupon the trial court directed that the person named therein may be summoned as an accused in the case. The order was based on mere examinationinchief of the witness. The High Court upheld the order.

The Full Bench of Rajasthan High Court has, in Dalip Singh and others v. State of Rajasthan, 1989(2) Recent Criminal Reports 23, taken a view that the Sessions Judge trying a case had wide power to proceed against persons not named in the committal order but against whom there appears primafacie case on the basis of the record and documents produced under Section 226, Code of Criminal Procedure. It is not necessary that the court should record further statement of any witness.

The Supreme Court has, in Hareram Satpathy v. Tikaram Agarwala and others, AIR 1978 Supreme Court 1568, held that where the Magistrate, after taking cognizance of the offence and perusal of the record and having been satisfied that there were primafacie grounds for issuing process against certain persons not mentioned in the police report, issued process against them, the Magistrate could not be said to have exceeded the power vested in him under law.

In Joginder Singh and another v. State of Punjab and another, AIR 1979 Supreme Court 339, the Supreme Court had again an occasion to examine the power of the trial Court under Section 319, Code of Criminal Procedure. It has been held that Section 319(1) clearly showed that even persons, who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, may be summoned. It has been observed that when a case is committed to the court of Session in respect of an offence, the court of session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused, the power under Section 319(1) can come into play and such court can add any person and direct him to be tried alongwith the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial.

The Supreme Court has recently, in Ranjit Singh v. State of Punjab, 1998(4) RCR (Crl.) 552 : JT 1998(6) SC 512, observed as under :

"Now it is well neigh settled that "evidence" envisaged in Section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The material placed before the committal court cannot be treated as evidence collected during enquiry or trial. (vide Rajkishore Prasad v. State of Bihar, JT 1996 1996(5) SC 437)."

On a consideration of the material on record in the present case and in the light of the decision of the Supreme Court in Ranjit Singh''s (supra), the order passed by the learned Magistrate, summoning Chanan as an accused, does not call for any interference. The evidence of the witness, Nathi, PW2, had been recorded by the learned Magistrate and thereafter cognizance against Chanan had been taken. As has been seen, opportunity to crossexamine the witness was afforded to the counsel representing the two accused facing the trial but the counsel did not choose to proceed with the crossexamination. He deferred the crossexamination for the reason that an application was filed by the Public Prosecutor for taking cognizance against Chanan. The learned counsel, therefore, found it expedient to postpone the crossexamination of witness after Chanan was summoned as an accused and was present in the court. It appears that the learned counsel purposely deferred the crossexamination of the witness so as to enable himself to proceed with the crossexamination in the presence of Chanan. The witness was indeed to be recalled after appearance of Chanan in the court as an accused.

In the light of the above discussion, it is found that the summoning of the petitionerChanan, on the basis of the evidence on record, is not violative of Section 319, Code of Criminal Procedure.

In the result, the petition is found to have no merit. It is dismissed. The learned Magistrate shall proceed further with the case in accordance with law and shall complete the trial expeditiously, preferably within six months as the case has become very old.