Hakam Singh and another vs State of Punjab

Sham Sunder, J.—This petition u/s 482 of the Code of Criminal Procedure, for quashing the summoning order dated 20.03.2009,

(Annexure P-6), passed by the Court of Additional Sessions Judge, Ludhiana, in pursuance of the application u/s 319 Cr.P.C., whereby the

petitioners were summoned as additional accused, for facing trial for the offences, punishable under Sections 302, 325, 452, 323, 324 and 506

read with Section 34 of the Indian Penal Code, in case FIR No. 69 dated 13.04.2007, Police Station Sadar Khanna, has been filed by the

petitioners.

I have heard the Counsel for the parties, and have gone through the documents, on record, carefully.

The Counsel for the petitioners, submitted that the persons summoned, as additional accused, were not challaned by the police, as they were

found innocent, during the course of investigation. He further submitted that after the challan was presented, against the co-accused, Daljit Kaur,

PW-2, was examined-in-chief. He further submitted that while summoning the aforesaid persons as additional accused, the Court below did not

take into consideration the statement of Daljit Kaur, PW-2 in its proper perspective. He further submitted that the examination-in-chief of Daljit

Kaur (PW-2), did not constitute the legally admissible evidence and, therefore, could not be acted upon. He further submitted that even the Court

below did not record satisfaction that a prima facie case, for the commission of the aforesaid offences, was made out. He further submitted that the

order impugned, being illegal, was liable to be set aside.

On the other hand, the Counsel for the respondents, submitted that the Court below after taking into consideration the statement of Daljit Kaur,

PW- 2, in its proper prospective, rightly came to the conclusion, that the aforesaid persons had prima facie committed the offences, referred to

above. It was further submitted that it could not be said that there was no legally admissible evidence, connecting these accused, with the offences.

It was further submitted that it could not be said that the satisfaction recorded by the Court, below, for summoning these accused was, not based

on judicial principles but on flimsy grounds. It was further submitted that the discretion exercised by the Court below, could not be said to be

arbitrary or capricious. It was further submitted that the order, impugned, being legal and valid, was liable to be upheld.

After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition

deserves to be dismissed, for the reasons, to be recorded hereinafter. Section 319 of the Code of Criminal Procedure, 1973, reads as under :

Power to proceed against other person 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 enquiry

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 afresh, and 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 enquiry or trial was commenced.

The plain reading of Section 319 Cr.P.C., 1973, clearly reveals that 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. At the time of deciding the application u/s 319

Cr.P.C., the Court is required to record a prima facie satisfaction that from the evidence, it appeared that the persons being summoned, as

additional accused, had committed the offences. The statement of Daljit Kaur was recorded as PW-2. She in clear cut terms stated that she along

with her husband and others was present in the house, when accused Parmod Giri, Suraj Giri along with seven persons namely Hakam Singh,

Surjit Singh, Bant Singh, Harphul Singh, Zora Singh and Chhapan Giri, armed with a rod each came there. She also, in clear- cut, terms stated that

they caused injuries on her persons, as also on the person of her husband. She further stated that they also caused injuries, on the person of

Gurpartap Singh, her son. Joginder Singh, husband of Daljit Kaur, on whose statement, the FIR was recorded, died on account of these injuries.

The Court below, in the order impugned, in clear-cut terms recorded that there was sufficient evidence, on record, to summon the petitioners, as

additional accused. So the order impugned, cannot be said to be illegal, in any manner.

The Counsel for the petitioners, however, placed reliance on Sarabjit Singh and Anr. v. State of Punjab and Anr., 2009(3) RCR (Cri) 388 (SC)

: 2009(4) R.A.J. 144 SC, Mohd. Shafi v. Mohd Rafiq and another, 2007(2) RCR (Cri) 762 (SC) : 2007(2) R.A.J. 534, Ganesha v. State of

Haryana and another, 2007(2) RCR (Cri.) 633, Hardeep Singh v. State of Punjab and others, 2008(4) RCR (Cri.) 947 : 2008(6) R.A.J. 342 and

Dharam Pal v. Hardial Singh, 1999 2 RCR (Cri.) 165, in support of his contention that in the absence of cross-examination of Daljit Kaur, it could

not be said that there was any legally admissible evidence, for summoning the additional accused. The submission of the Counsel for the petitioner,

does not appear to be correct. In Sarbjit Singh''s case supra on peculiar facts and circumstances prevailing therein, the Court came to the

conclusion that sufficient and cogent reasons had not been assigned for summoning the additional accused. In the instant case, sufficient and cogent

reasons, were assigned, by the Court below, on the basis of the evidence of Daljit Kaur, PW-2, that the petitioners participated in the commission

of crime and caused injuries, on the person of Joginder Singh, leading to his death. In Mohd. Shafi''s, Ganesha''s, Hardeep Singh''s, and Dharam

Pal''s cases (supra) it was held that in the absence of cross- examination of the witness, no satisfaction could be recorded that there existed a

possibility that the accused, so summoned, were in all likelihood, would be convicted. It may be stated here, that the accused, sought to be

summoned on the basis of the evidence, led in pursuance of the application u/s 319 Cr.P.C., could not be said to be available, before the Court, at

the time of passing such an order. Only after summoning them as additional accused, to face trial that they could come present and cross- examine

the witnesses. In Rakesh and anr. v. State of Haryana, 2001(3) RCR (Cri.) 681 (SC), Lok Ram v. Nihal Singh, 2006(2) RCR (Cri) 707 : 2006

(2) AC 71(SC) and Paramjit Kaur and others v. State of Punjab and another, 2007 (1) RCR (Cri), 241, relied upon by the Counsel for the

respondents, the principle of law, laid down, was to the effect, that a person can be added as an additional accused, on the basis of statement of a

prosecution witness, who was not cross-examined. It was further held that cross-examination of such a witness before passing the order on an

application u/s 319(1) Cr.P.C., is not necessary. An argument was raised in Rakesh and anr''s case (supra) before the Apex Court that evidence

as used in Section 319 Cr.P.C. would mean evidence which is tested by cross-examination. It was held that the question of testing the evidence by

cross-examination would arise only after the addition of the accused. It was further held that there is no question of cross-examining the witness,

prior to adding such person as an accused. It was further held that Section 319 Cr.P.C., does not contemplate an additional stage of first

summoning the person, and giving him an opportunity of cross-examining the witness, who has deposed against him, and thereafter deciding

whether such person is to be added as an accused or not. Word ""evidence"" occurring in sub-section is used in comprehensive and broad sense

which would also include the material collected, by the Investigating Officer, and the material or evidence which comes before the Court, and from

which the Court can prima facie conclude, that the person not arraigned, before it, is involved in the commission of crime. The principle of law, laid

down, in Rakesh and anr''s Lok Ram''s and Paramiit Kaur and other''s cases (supra) is fully applicable to the facts and circumstances of the instant

case. Keeping in view the principle of law, laid down, in these cases, the trial Court was right, in summoning the accused, for facing trial, on the

basis of examination-in-chief of Daljit Kaur, PW-2. In this situation, no help can be drawn by the Counsel for the petitioners from Sarabiit Singh

and Anr''s, Mohd Shafi''s, Ganesha''s, Hardeep Singh and Dharam Pal''s cases (supra). The submission of the counsel for the petitioners, being

without merit, must fail and the same, stands rejected.

The order impugned, does not suffer from any illegality or perversity, warranting the interference of this Court. The same is liable to be upheld.

For the reasons, recorded above the instant petition, being devoid of merit, must fail, and same is dismissed.