Dev Raj vs Lal Chand and others

M.M. Punchhi, J. (Oral)

This is a composite petition under Section 401 read with section 482 of the Code of Criminal Procedure. Two orders of Additional Sessions Judge, Sonepat dated 1.2.1982 and 18,.8.1982 have been challenged herein. These came to be passed in following circumstances.

The broad allegations of the prosecution were that at Sonepat there were two grounds (groups) of truck operators warring with each other to capture the elected offices of the truck union, On 28.3.1981 a fight took place between the two rival groups at Ganaur in which Rajbir and Raj Kumar and a few others persons led by Jaga Ram, were injured. The said Rajbir and Raj Kumar were brought to civil Hospital, Sonepat, the same day for treatment. The news of the same caught fire. Quite a few truck operators arrived at the hospital at about 7.00 p.m. Amongst those who arrived were Lal Chand and his son Satinder Kumar, the present respondents. `Along with them allegedly there were Shamsher, the nephew of Lal Chand. Lal Chand and Satinder Kumar respondents entered the emergency room where Rajbir and Raj Kumar were lying admitted or treatment. It is then that Lal Chand respondent is alleged to have fired a gun shot at Rajbir, P.W. who was saved but the pellets hit Dharam Pal P.W. Similarly Satinder Kumar respondent is alleged to but he have fired a gun shot at Raj Kumar who too was saved pellets hit Smt. Nirmala P.W. In the meantime Dev Raj petitioner came out of emergency ward due to fear and he was dealt with by Shamsher accused who was standing cut side the emergency ward, by firing a gunshot at him. He too was saved as he had hidden himself behind a tree, but pellets hit Amit Chand and Kewal Singh P.Ws. These all intended victims got themselves saved, but the pellet injuries are alleged to have been received by others. All the three accused then ran away from there in a car.

Where the matters was reported to the police and investigation was conducted thereon a final report was filed before the committing Magistrate. Lal Chand and Satinder Kumar respondents were shown in column No. 2. The challan alone was presented against Shamsher accused. The learned Magistrate then committed Shamsher to stand his trial before the Court of session, but all the same referred the other two accused as well to the Court of session. When the matter was put up before the Additional Sessions Judge, the point raised there was where Lal Chand and Satinder Kumar accused respondents be discharged or should they be put up for trial along with other coaccused Shamsher. For the purpose Dev Raj petitioner had been filed an application for putting the aforesaid two accusedrespondent on trial. The learned Judge vide order dated 1.2.1982 discharged the accusedrespondents by observing as follows :

" Thus keeping in view all this, at this stage it cannot be said that the police has wrongly shown these two accused in column No. 2 of the challan. It appears that the police has not rightly challaned them because the story against these two accused does not appear to be probable and naturalProvisions section 319, of Cr.P.C. are not attracted in this case at this stage because the evidence of the prosecution witnesses has not yet been "recorded in this Court. The case is still a charge stage.To Conclude, I am of the opinion that prima facie, no case is made out against Lal Chand and Satinder accused. They are accordingly discharged. The application of Dev Raj applicant is also dismissed."

Shamsher accused alone had to face charge under section 307 of the Code of Criminal procedure and under section 27 of the Indian Arms Act. It has now been stated at the bar before me that the learned Additional Sessions Judge, after due trial, ultimately, acquitted the said accused.

When sufficient evidence had been recorded, the complainant again moved the learned Additional Sessions Judge to consider calling of Lal Chand and Satinder Kumar respondents to face trial. The learned Judge, vide his order dated 18.8.1982, rejected that prayer by observing as follows :

"Thus when the statements of these three witnesses which they made before Inspector Sant Lal and then before Inspector Zile Singh and then in the Court, do not tally with each other in material particulars and now they have completely changed the prosecution story while making the statements in the court from the one which they put up before the police "during the investigation stage so far as Lal Chand and Satinder Kumar are concerned, no reliance can be placed on their statements qua them. It will be travesty of justice of act upon the statements of these three witnesses for summoning Lal Chand and Satinder Kumar as accused in this case in terms of section 319, of the Cr.P.C.

One of the points which arose in this petition was whether the Court of session without recording evidence could summon a person to stand trial as an accused (alongwith other committed to it by a Magistrate) on the basis of the documents in the final report of the investigating officer, under section 173 of the Code of Criminal Procedure. Such a question had been referred to a Division Bench in Crl. Misc. No. 3837 of 1982 (Lal Chand v. State of Haryana), 1983(2) RCR(Crl.) 587 (P&H) : . The Bench consisting of Hon''ble the Chief Justice S.S. Sandhawalia and S.S. Kang J., vide order dated April 20, 1983, have concluded that a Court of Cession when it is recording evidence can summon an additional accused to stand trial along with others already committed to it on the basis of the documents in the final report of the investigating officer, under section 173 of the Code of Criminal Procedure in view of the provisions of sections 227 and 228 of the Code.

On the touchstone of the aforesaid authority, it has been contended on behalf of the petitioner that the first order of the Additional Sessions Judge, dated 1.2.1982 was bad in law inasmuch as he took the view that before recording evidence he could not summon the accusedrespondents. Sequel thereto, it is contended that the second order automatically falls for the Additional Sessions Judge was made to consider the question a fresh on the basis of the material available on the final report as submitted to it. It seems to me that the observations given by the learned Additional Sessions Judge culled out above do not reveal that he had fallen into any error in that regard. The learned Addl. Sessions Judge was fully alive that at that stage, on the basis of the documents before him, he could frame change against Lal Chand and Satinder Kumar accusedrespondents as also he could equally discharge them. Significantly both the accused persons were present before him when he considered this aspect of the case. However, as a matter of prudence and caution, he kept it reserved that if a stage would arrive to employ section 319 of the Code of Criminal Procedure, the observations made in the said order, would not stand in his way. It is in this light that he discharged the aforesaid two accusedrespondents And after still when he had recorded evidence and he was called upon to examine the desirability of calling the accusedrespondents, under Section 319 of the Code of Criminal Procedure, to face trial alongwith Shamsher accused, he considered the matter and found that there was no reliable evidence to summon the accusedrespondents for the purpose. Though the copies of the statements of the witnesses examined by the trial Judge have been placed on this record, but on going through the same, I feel that the view taken by the learned trial Judge cannot be said to be altogether wrong requiring interference by this Court, in the backdrop of this that the same evidence, has no been, made use of by acquitting hamsher accused. Thus it seems to me that no purpose will be served (not that I would like it), by asking the learned Additional Sessions Judge to reconsider the matter.

For the view I have taken, there is no merit in this petition which fails and is hereby dismissed.