Mukand Lal vs State of Haryana

S.D. Bajaj J.

Recording of prosecution evidence in criminal case No. 822 of 1997 entitled State v. Moti Ram and another was concluded by the learned trial court on December 6, 1987. On December 16, 1987 the prosecution applied for summoning of Mukand Lal and Kanshi Ram, entered in column No. 2 of the calendra as accused in this case on the grounds that required inculpatory evidence against them both was forthcoming from the depositions of complainant Jai Gopal and the two eyewitnesses named Moti Ram and Baru Ram. Observations made by the learned trial Court in this regard read :

"The learned APP has taken pains to take me through the deposition of the complainant Jai Gopal who has specifically stated that Mukand Lal had dragged him out of his house and Kanshi Ram had given him a blow on his face wherein his jaw was damaged and tooth had come out of it. Maru Ram another eyewitness has also deposed about the participation made by these two persons in the alleged fight. Baru Ram another eyewitness appearing as PW supported the complainant in his version".

Accepting the request made by the prosecution, learned trial Court vide its impugned order dated Dec. 24, 1987 ordered them to be summoned through warrants for January 2, 1988. Mukand Lal, one of them, has filed Criminal Misc. No. 2383M of 1988 in this court for quashing the summoning order dated December 24, 1987 aforesaid.

I have heard Shri Atul Lakhanpal, Advocate for the petitioner, Shri R. A. Sheoran, Advocate for the respondentState and have carefully gone through the impugned order of the learned trial Court.

Relevant section 319 of the Code of Criminal Procedure reads :

"(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 subsection (1) then

(a) The proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;

(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.

The Law Commission in its 41st Report observed

"It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person other than accused before him, is also concerned in that veryoffence or in a connected offence. It is only proper that a magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is not express provision in Section 351 for summoning such a person if he is not present in Court. Such a provision would make Section 351 fairly comprehensive, and we think it proper to expressly provide for that situation."

In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983(1) Recent Criminal Reports 73 : A.I.R. 1983 Supreme Court 67 , their Lordships of the Supreme Court observed :

"This provisio gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused. This provision was also the subject matter of a decision of this Court in Joginder Singh v. State of Punjab, (1979)2 SCR 306 : (AIR) 1972 SC 339) where Tulzapurkar J. speaking for the Court observed thus :

A plain reading of section 319(1), which occurs in Chapter XXIV dealing with general provisions as, to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused". In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused.

Absolute power in this regard being available with the learned trial Court to summon the petitioner as accused on the basis of evidence adduced by the prosecution against him which has been duly adverted to in para. 5 of impugned order there is absolutely no merit in the Criminal Misc. aforesaid. Dismissed.

Misc dismissed.