Makhan Singh vs State of Punjab

N.K. Kapoor, J.

Petitioner seeks quashing of summoning order dated 5.6.1996, annexure P3, passed by Sessions Judge in case F.I.R. No. 162 dated 19.11.1995 under Sections 302, 324, 452, 34 IPC.

Sardara Singh lodged an F.I.R. at Police station Dharamkot alleging therein that the petitioner has committed the murder of Sham Kaur. Matter was investigated by the Investigating Agency and it was found that in fact the petitioner and another person Baldev Singh were not involved in the murder. This investigation was duly verified by SI Gurdip Singh, S.I. Surjit Singh and Superintendent, of Police (Operation) Ferozepur. All these officers gave a finding that the petitioner was innocent and that the murder in fact was committed by Sardara Singh accused. During investigation statement of Pawan Kumar was also recorded, who deposed that Sardara Singh had made an extra judicial confession that he had hatched a conspiracy to get the petitioner falsely implicated in the murder of his motherinlaw, Sham Kaur. Similarly, Sucha Singh, a neighbour of Sardara Singh, too made a statement to the effect that he heard the cries of Karnail Singh alias Kaila, son of Sardara Singh, and on coming out of his house saw Sardara Singh standing armed with a Kappa and when asked Sardara Singh as to what is the matter, told him that there is nothing to worry but in the morning it was learnt that Sham Kaur has died and Karnail Singh has been admitted to hospital. So, Sucha Singh also stated that Sardara Singh has committed the murder of Sham Kaur and has also caused injury to Karnail Singh and that no outsider has come to the house to commit the murder of Sham Kaur. Police consequently challanned Sardara Singh alone.

Gurdev Kaur and Gurmeet Kaur were mentioned as prosecution witnesses. Both of these were examined by the Court, who deposed that murder has in fact been committed by the petitioner and one Baldev Singh and not by Sardara Singh. Accordingly, the Public Prosecutor conducting the case moved an application under Section 319 Cr.P.C. for summoning the petitioner as an accused, which has been allowed by the Sessions Judge vide his order dated 5.6.1996, annexure P3.

According to the learned counsel for the petitioner the order of Sessions Judge is illegal and violative of Section 319(1) and Section 223 of the Code of Criminal Procedure on the following grounds :

That as per Section 319(1) Cr.P.C. only such a persons can be summoned as an accused who can be tried together with the accused already facing trial. But as in the present case petitioner is not alleged to have acted in concert with the accused Sardara Singh, who is already facing trial, the petitioner cannot be summoned in terms of Section 319 Cr.P.C. In fact, two different and distinct versions have come up, one that the murder has been committed by Sardars Singh alone and second which is based upon the statement of Gurdev Kaur and Gurmeet Kaur that the murder has been committed by the petitioner and also by one Baldev Singh. These two versions are mutually exclusive. So, in the same trial another charge is to framed against the petitioner and Baldev Singh, which per se is in conflict with the earlier charge framed against Sardara Singh. Precise submission is that the Court can either take the case as originally set up by the prosecution or the one now based upon the version as given by the witnesses. In any case, both sets of accused cannot be tried jointly. Support has been sought from the decisions in Amar Singh and another v. The State, AIR 1954 Punjab 106 and in Harjinder Singh v. State of Punjab and others, (1985) 1 Supreme Court Cases 422.

That during the investigation of the case by the police, petitioner and Baldev Singh joined the investigation and were found to be innocent whereas the statement of the accused Sardara Singh and the statement of PWs Gurdev Kaur and Gurmeet Kaur were found to be false. Gurdev Kaur is the wife of Sardara Singh and Gurmeet Kaur is the daughter and the statement of these witnesses, if viewed in right perspective would show that sole aim appears to be to protect Sardara Singh. To that extent the prosecution has also not conducted fairly while showing these persons amongst the list of prosecution witnesses;

That it was incumbent upon the Court to issue a notice to the petitioner and Baldev Singh before any decision could be taken against them especially when the petitioner and Baldev Singh had no opportunity to cross examine Gurdev Kaur and Gurmeet Kaur; and

That impugned summoning order is perverse as the trial Court has almost substituted the petitioner and Baldev Singh as accused in place of Sardara Singh accused.

Defending the summoning order, counsel representing the State argued that Section 319 Cr.P.C. gives ample powers to the Court to summon any person, who is alleged to have committed an offence. This power can be exercised by the Sessions Judge even without recording of evidence. Even independently of Section 319 a Sessions Judge has powers to summon such other persons, who can be said to have committed the offence even on relying upon the documents furnished under Section 173 Cr.P.C. Thus, such an order cannot be termed to be without jurisdiction and so the petition being wholly mis conceived deserves to be dismissed on this ground alone. Similarly, there is no substance in the contention of the petitioner that both sets of accused cannot be tried together. Examined in the light of the evidence which has so far been recorded, two distinct versions have come to the fore, one accusing Sardara Singh of the heinous crime and other implicating the petitioner and one Baldev Singh. Moreover, petitioner and Baldev Singh have only been ordered to be summoned to stand trial under Sections 302, 324, 452, 34 IPC and the matter whether in such an eventuality a separate trial is to be conducted against the petitioner is a matter which the Sessions Judge will examine in the light of the provisions of the Code. In any case, this by itself cannot be taken to be a ground to quash a valid summoning order.

Facts have been briefly noticed i.e. registration of a F.I.R. by Sardara Singh about the murder of Sham Kaur. As per version in the F.I.R., petitioners as well as Baldev Singh struck Sham Kaur with kirpan directly on her head and as he and his son Kala woke up, Baldev Singh hit Kala with kirpan. Similarly, Makhan Singh too inflicted a blow with his dasti kappa and on his raising a raula both of them ran away with their weapons. Investigating Agency, however, declined to place reliance upon the version as given by Sardara Singh and on the other hand came to the conclusion that in fact Sardara Singh committed the murder of Sham Kaur, his motherinlaw. Petitioner as well as Baldev Singh were shown in column No. 2 of the report under Section 173 Cr.P.C. As noticed in the earlier part of the judgment, Gurdev Kaur (wife of Sardara Singh) and Gurmeet Kaur (daughter of Sardara Singh) were examined as prosecution witnesses, who during their examination before Sessions Judge deposed that it is the petitioner Makhan Singh and his coaccused Baldev Singh, who in fact committed the murder of Sham Kaur alias Shamo, which led to the filing of an application for summoning them, which was subsequently allowed by the Sessions Judge vide order dated 5.6.1996. The Court while ordering the summoning of the petitioner and Baldev Singh has made mention of the fact that Gurdev Kaur was an eyewitness of the occurrence. Gurmeet Kaur also in her statement under Section 161 Cr.P.C. deposed that Baldev Singh and Makhan Singh were assailants, who caused injury to Sham Kaur and Karnail Singh with kirpan and Kappa. Court also noticed that petitioner as well as Baldev Singh were shown in column No. 2 of the report under Section 173 Cr.P.C. Keeping in view the deposition of Gurdev Kaur and Gurmeet Kaur and also the fact that the petitioner was shown in Column No. 2 of the report submitted under Section 173 Cr.P.C. the order of summoning the aforesaid persons under Section 319 Cr.P.C. cannot be termed to be an order without jurisdiction. In fact, Section 319 Cr.P.C. empowers a Court to proceed against any such person who appears to be guilty of an offence. Such a power can be exercised by a Sessions Judge even without recording of evidence i.e. even on the basis of documents furnished under Section 173 Cr.P.C.

The other objection of the petitioner as to whether both sets of accused persons, namely, Sardara Singh on one hand and petitioner and Baldev Singh on the other hand can be tried jointly, especially when the version as set up by the prosecution and the version which is based upon the statement of the prosecution witnesses, namely, Gurdev Kaur and Gurmeet Kaur, is a matter which will be examined by the Court in the light of relevant provisions of the Code and the submissions of the counsel representing the parties. At this stage it would be premature to dilate upon this aspect any further.

Thus finding no merit in the petition, the same is dismissed.