Jagjiwan Singh Gill vs State of Punjab

S.S. Sodhi, J.

Jagjiwan Singh and his daughter Sharanjit Kaur were ordered to be summoned as accused by the impugned order of the Additional Sessions Judge, Ludhiana in the case committed to the Court of Sessions arising from the alleged murder of Mandeepak Singh, Advocate.

The facts relevant to this matter are that Amarjit Singh, the father of Mandeepak Singh was named as the accused in the First Information Report. During investigation, the statement of Manjit Kaur the mother of Mandeepak Singh, deceased, was recorded. According to her, the murder of Mandeepak Singh was as a result of a conspiracy between her husband Amarjit Singh accused, his brother Santokh Singh, nephew Mastan Singh and the two petitioners Jagjiwan Singh and Sharanjit Kaur. Four other persons also made statements to this effect during investigation, they being Swaran Singh, Bakshish Singh, Sarwan Singh and Baldev Singh. The Magistrate did not however, sent up Jagjiwan Sigh8 and Sharanjit Kaur as accused as they were shown in column No. 2 by the police. It was on the application of the complainant, Manjit Kaur, that the impugned order came to be passed. The challenge to this order now is that not having been committed for trial, the petitioner could not have been summoned as accused except under the provisions of Section 319 of the Code of Criminal Procedure (hereinafter referred to as the Code), in terms of which a persons can be summoned as an accused only after some evidence has been recorded. In the present case, the two petitioners had been summoned without any evidence having been recorded. The impugned order was thus illegal, it was argued.

There being a conflict of authorities, with regard to the question raised, the matter was ordered to be placed before the Hon''ble Chief Justice for it to be considered by a Larger Bench. In Lal Chand and another v. State of Haryana, 1983(2) RCR(Crl.) 587 (P&H) : Criminal Misc. No. 3837M of 1981 , the legal position was considered and the matter has now been sent back for decision on merits.

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 Magistrte) 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 Magistrte 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 materials appears to it to be prima faice guilty of the said offence, but indeed it is its duty do so."

Further, following the judgements 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 validily taken cotnizance of the offence on the basis of police report (when considering the material 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 if it is fully satisfied of the existence of a prima facie case against the additional accused who may not have been sent up as such."!

The challenge to the impugned order on the ground that the Court lacked jurisdction to summon the petitioners as accused cannot be sustained in view of the observationis of the Division Bench in Lal Chan''d case (supra).

It needs to be clarified, however, that as the petitioners have been summoned at the presections 227 and 228 of the Code, stage, their rights to make submissions and to be heard in terms of Section 227 of the Code and the jurisdiction and authority of the Court to act thereunder shall not be fettered or effected by the impugned order. In other words, 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 section 227 of the Code, in discharging them, of course for reasons to be recorded. With these observations this petition is hereby dismissed.