Gurbachan Singh vs State Of Uttarakhand And Others

R.C. Khulbe, J

By means of this petition, moved under Section 482 Code of Criminal Procedure, 1973 (hereinafter to be referred as 'Cr.P.C'), the petitioner Gurbachan Singh has sought quashing of order dated 27.11.2012 whereby the learned Additional Sessions Judge in S.T. No.325 of 2007, State v. Jarnail Singh, rejected the application (123B) filed by the petitioner under Section 319 Cr.P.C. against the respondent no.2 Malkit Singh and respondent no.3 Pawan Deep Singh.

Learned Counsel for the petitioner contends that though, the F.I.R. was lodged against Kulwant Singh, Jarnail Singh, Malkit Singh and Pawandeep Singh, and the main role in commission of crime was assigned to all the accused, however, the charge-sheet was submitted only against two accused namely Kulwant Singh and Jarnail Singh.

While, in the evidence of prosecution witnesses, namely, PW3 Harbinder Singh, PW4 Harprit Singh and PW5 Harjinder Kaur, they have categorically stated in their statements that at the time of commission of crime, the respondents Malkeet Singh and Pawan Deep Singh were also present, but the Trial Court overlooked the evidence of these witnesses, and rejected the application under Section 319 Cr.P.C.

I have heard learned Counsel for the petitioner as well as learned A.G.A. for the State and also gone through the entire material available in file.

During investigation, neither the informant Gurbachan Singh nor any other witness could provide any material against the respondents Malkeet Singh and Pawan Deep Singh. The complainant alleged in the F.I.R. against these respondents that they tried to put the complainant in the vehicle of the accused and on making hue and cry by his wife, some person exhorted the name of accused and they ran away boarding on a Hyundai car. The car was driven by some unknown person.

PW-1, Harjinder Singh did not say anything about the respondents Malkeet Singh and Pawan Deep Singh. PW-2 complainant Gurbachan Singh deposed in his evidence that on 27.01.2006 at about 6:00 PM, he went to participate in the marriage ceremony of son of Gurdayal Singh. While he went towards his car, all the accused, namely, Jarnail Singh, his son Malkeet Singh and Pawan Deep Singh said to Kulwant Singh that the complainant-Gurbachan Singh had come and put him in the car. All the accused dragged him in the car for the purpose of abduction.

From a perusal of the statement of PW-2 Gurbachan Singh, it is clear that no such allegation was made by the informant in the FIR against the present respondents Malkeet Singh and Pawan Deep Singh. From the statement of PW-2 Gurbachan Singh, it seems that he gradually, developed this story against the respondents in his statement. The same statement was given by PW-3 Harvinder Singh. PW-4 Harpreet Singh also deposed alleging that four persons drawn the complainant in Hyundai car and on the exhortation, the complainant fell out from the car.

From a perusal of the evidence, it is clear that the prosecution witnesses did not disclose as to what specific role was played by the present respondent nos. 2 and 3 at the spot.

I have also gone through the statements of the witnesses recorded before the trial court. None of the prosecution witnesses could provide any sufficient material against the respondents. As per the FIR, Harjinder Kaur wife of Gurbachan Singh and Harvinder Singh were present at spot. The names of witnesses PW-1 Harjinder Singh and PW-4 Harpreet Singh were not named in the FIR.

As per the FIR, informant-Gurbachan Singh and his wife had gone to Sonia Hotel to attend the marriage ceremony of the son of Gurdayal Singh, while the witness PW-4 Harpreet Singh deposed that he went to Sonia Hotel to attend the marriage ceremony of the daughter of Amreek Singh. PW-3, Harvinder Singh is stating that Malkeet Singh and Pawan Deep Singh were putting Gurbachan Singh in the car and the driver of the car was driving slowly. But the fact, whether any force was used by the present respondents at the time of crime, is not clear.

None of the prosecution witnesses supported the prosecution story regarding the alleged role of respondent nos. 2 and 3. On the basis of the evidence, it cannot be said that there is reasonable possibility of conviction of the respondents Malkeet Singh and Pawan Deep Singh. Mere presence at the spot of respondent nos. 2 and 3 cannot be presumed that the respondents played an active role in an attempt to abduct the informant-Gurbachan Singh.

In the present sessions trial, the learned Sessions Judge has already invoked the jurisdiction under Section 319 of Cr.P.C. on 21.01.2010, whereby the respondent Malkeet Singh had been summoned. The present respondent-Malkeet Singh knocked the door of this Court by filing the criminal misc. application no. 174 of 2010 (Malkeet Singh vs. State of Uttarakhand and another), wherein, this Court quashed the impugned summoning order on 25.02.2010, since no evidence was found against him to proceed with the trial.

Again, the informant-Gurbachan Singh filed an application under Section 319 Cr.P.C. to summon the respondents Malkeet Singh and Pawan Deep Singh, which was rejected by the learned Additional Sessions Judge, Udham Singh Nagar on 27.11.2012.

It is useful to reproduce the language of Section 319 of Cr. P.C. which is extracted hereinunder:-

"319. 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 sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard;

(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.

Although, the Constitution Bench of the Apex Court, in the case of Hardeep Singh vs. State of Punjab and others reported in (2014) 3 SCC 92, has held that the powers given in Section 319 Cr.P.C. can be exercised during inquiry and trial, but in Kailash vs. State of Rajasthan and another, 2008 (2) Criminal Court Cases 610 (S.C.), the Apex Court has held that merely for the reason that some witness has mentioned the name of a person, he is not necessarily required to be summoned under Section 319 of Cr.P.C. Explaining the expression "it appears" in Section 319 Cr.P.C., the Apex Court says that the same should not be read lightly. It further lays down that while exercising the power, the court should proceed with caution which the language of the section demands.

In the present case, the prosecution has produced 8 witnesses and the trial is pending since 2007. The complainant has already availed this opportunity earlier in the year 2010. There is no clinching evidence found against the respondent nos. 2 and 3 Malkeet Singh and Pawan Deep Singh respectively.

This Court has thus come to the conclusion that the trial court had passed the impugned order after scrutinizing the entire evidence on record, and that no case is made out against the respondents to proceed with the trial. I do not find any infirmity or illegality in the impugned order.

From the perusal of all the evidence, it cannot be said that there is a reasonable possibility of conviction of Malkeet Singh and Pawan Deep Singh.

Accordingly, the present criminal misc. application filed under Section 482 of Cr.P.C. is liable to be dismissed. The same, is accordingly, dismissed. The order dated 27.11.2012 passed by the Third Additional Sessions Judge, Udham Singh Nagar in Sessions Trial No. 325 of 2007, State vs. Jarnail Singh, is hereby confirmed. Since the trial is pending for the last 11 years, the Trial Court is directed to conclude the trial as per law within a period of 6 months.

Let a copy of this judgment be sent to the Court below for information.