Krishna Kaur and Others vs State of Punjab

Rajive Bhalla, J.

Crl. Misc. No. 10817 of 2009

Prayer in this application is for 12 days delay in filing the revision petition.

For the reasons stated in the application, delay of 12 days in the filing of the revision petition is condoned.

Crl. Revision No. 546 of 2009

The petitioners impugn an order dated 17.11.2008, passed by the Additional Sessions Judge/Fast Track Court, Gurdaspur, summoning the petitioners to stand trial as additional accused on the basis of an application, filed u/s 319 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'').

Counsel for the petitioners submits that the merits of the case apart, the impugned order discloses a failure on the part of the trial court to record an opinion in terms of Section 319 of the Code. It is submitted that before proceeding to summon a person u/s 319 of the Code, a court is required to appraise the "evidence on record" and, thereafter, record a positive finding that the person sought to be summoned has committed an offence, for which he be tried together with the already arraigned accused. It is submitted that apart from a sentence, in the impugned order, that there is sufficient ground for summoning the accused, the learned court below has failed to record any reasons in terms of the provisions of Section 319 of the Code.

Counsel for the State of Punjab on the other hand submits that the impugned order does not suffer from any error. The trial court has perused the final report, the statements recorded u/s 161 of the Code, the deposition of PW-2 and has thereafter recorded an opinion that there are sufficient grounds to summon the petitioners. It is submitted that it is the essence of the order and not the expressions used therein that would determine its legality.

I have heard learned Counsel for the parties and perused the impugned order.

The operative part of the order reads as follows:

I have perused the file and report of u/s 173 Cr.P.C. a perusal of record statement of complainant u/s 161 Cr.P.C. the complainant has clearly mentioned the name of accused col. No. 2 regarding the murder of Gurdial Singh. The complainant appeared in the witness box as PW-2 has also mentioned the names in the column No. 2 of the challan. As such there is sufficient ground for summoning the accused mentioned in the column No. 2 u/s 319 Cr.P.C. for the offence u/s 302 read with Section 34 IPC. Therefore, all accused ordered to be summoned mentioned in the column No. 2 for 23.12.2008. Application disposed of accordingly.

A perusal of the aforementioned extract, leaves no manner of doubt that the trial court has failed to record its satisfaction in terms of Section 319 of the Code. As set out u/s 319 of the Code, where it appears during the course of any enquiry or trial that any person not being the accused has committed any offence, for which he could be tried together with the accused, the court may proceed against such person for the offence, which he appears to have committed. The key to the exercise of power u/s 319 of the Code is that a person other than the accused has committed an offence, for which he may be tried together with the accused. A judicial consideration of a prayer for summoning as an additional accused must be based upon an appraisal of all relevant evidence, the setting out of cogent reasons, preceded by a perceptible process of reasoning. A perusal of the impugned order discloses an abject failure on the part of the trial court to record any satisfaction in terms referred to herein above.

Consequently, the present petition is allowed. The order dated 17.11.2008 is set aside and the matter is remitted to the trial court to decide the application filed u/s 319 of the Code, afresh and in accordance with law by recording a considered opinion in terms of the provisions of Section 319 of the Code, within a period of two months from the date of receipt of a certified copy of this order.