Raju vs State of Haryana

Surinder Gupta, J.—This revision petition is directed against the order dated 04.06.2014 passed by learned Sessions Judge, Karnal whereby he allowed the application u/s 319 Code of Criminal Procedure (for short ''Cr.P.C.'') moved by the prosecution and the petitioner was summoned to face trial for the offences punishable under Sections 120-B, 148, 307, 325, 323, 506, 285 read with Section 149 Indian Penal Code (for short ''IPC'').

A case bearing FIR No. 537 dated 17.07.2013 was registered at Police Station Sadar Karnal on the statement of complainant Rajesh Kumar. The occurrence took place on 17.07.2013. The relevant part of the FIR relating to the occurrence as incorporated in Annexure P-1 is as follows:-

Today I along with Sandeep son of Kalu Ram caste Nai, resident of Sisoli, PS Bhorkalan, District Muzaffar Nagar and now resident of Gali No. 20 Karan Vihar, Karnal, Sushil Rana son of Hukam Chand, resident of village Amritpur, at present PS Madhuban at present Karan Vihar, Karnal and Amit Luthra son of bal Kishan resident of E-277, Arjun Gate, Karnal now resident of Factory Belt, Prithvi Vihar, Karnal, were making the foundation of plot at Prithvi Vihar according to the agreement to sell and we had employed some labourers. We all four persons were standing near labourer and Mason whose addresses are not known. Today time about 1.30 PM, 5 to 6 persons came in a Swift Car. Their names are Mahesh son of Hukam Chand, resident of Jaani and Virender resident of Sisolia and elder son of Prem Singh Panchal and two other unknown persons came there. Virender was possessed with rifle and the other boys were possessed with binda of kassi and in the meantime, four boys followed Virender having kassi binda in their hands. Immediately after coming, Virender touched the rifle at my stomach and said ''teach him a lesson for making the foundation in this plot'' and at the same time, the accomplice of Virender attacked my friends with their bindas of kassi and Virender gave a blow on the back side of my head with butt of his rifle and caused another injury at my right arm with his rifle and Virender ran away from the spot with his accomplice making fire from his rifle and we had a narrow escape. Virender and others with their common intention caused injuries to us at the behest of Prem Panchal and Virender and others threatened to kill us. I have got recorded my statement, heard and found it correct. Sd/- Rajesh Kumar, 17.07.2013.

The police presented the final report in which the petitioner was not challaned. The trial Court after recording the statement of complainant and on the basis of evidence on file, ordered the summoning of the petitioner as additional accused on the application of the prosecution. The operative part of the order of trial Court is as follows:-

In his statement Ex. P2, complainant Rajesh did not mention the name of Raju as one of the assailants, but he mentioned that elder son of Prem Singh Panchal was one of the assailants. Raju, who has been sought to be summoned as additional accused is the same person, who is elder son of Prem Singh Panchal. Complainant Rajesh when appeared in the witness box has mentioned the name of Raju as one of the assailants. Injured Sushil Kumar in his statement u/s 161 Cr.P.C. also named Raju son of Prem Singh Panchal, as one of the assailants and he has alleged that he gave a wooden log of the kassi in his head and thus caused injuries. Prima facie there is evidence that said Raju son of Prem Singh Panchal was also one of the members of the unlawful assembly alongwith co-accused, who are facing trial. As such prima facie offences punishable under Sections 120-B, 148, 307, 325, 323, 506, 285 read with Section 149 IPC are made out against accused Raju son of Prem Singh Panchal. As such he be summoned as an additional accused to face trial for the aforesaid offences for 25.7.2014, through non-bailable warrants of arrest.

Learned counsel for petitioner argues that the petitioner was not named in the FIR. During police investigation, he was found innocent. The statement of complainant recorded by the trial Court was in contradiction to the statement recorded by the police at the time of recording the FIR. The trial Court has also taken into account the statement of another injured of the occurrence namely Sushil Kumar recorded u/s 161 Cr.P.C. He has relied upon the observations of the Hon''ble Supreme Court in case of Babubhai Bhimabhai Bokhiria & Anr. Vs. State of Gujarat & Ors. 2014(3) Criminal Court Cases 194, wherein it has been observed that while recording its satisfaction u/s 319 Cr.P.C., the Court has to satisfy itself on the basis of evidence led during trial. On the strength of the above argument, learned counsel for the petitioner has argued that the statement of injured Sushil Kumar recorded by the police u/s 161 Cr.P.C. could not be taken into consideration by the trial Court while summoning the petitioner as an additional accused.

On perusal of the file with the assistance of learned counsel for the petitioner, I find that presence of petitioner at the time of occurrence find mentioned in the FIR. He has not been mentioned by name but as ''elder son of Prem Singh Panchal''. This shows that the complainant was knowing and identifying the petitioner but was not aware of his name which he has stated in his statement while appearing as PW1 before the trial Court. This fact has not been denied by learned counsel for the petitioner that the petitioner is the elder son of Prem Singh Panchal. This being so, the description of petitioner has been rightly given in the FIR. While appearing as PW1, the complainant has specifically named the petitioner and has also attributed his role in the occurrence by stating that the petitioner gave a danda blow.

From the statement of complainant and the evidence on file, it is clear that the petitioner has not been introduced by the complainant for the first time while appearing as PW1, rather, his presence at the time of occurrence is mentioned in the FIR itself. The statement of complainant recorded in the Court is not in contradiction of his statement recorded in the FIR. Admittedly, he received injuries which he has described in his statement while appearing as PW1.

Learned counsel for the petitioner has further argued that in the police investigation, the petitioner was found to be innocent and even police has not found his presence at the spot.

The issue regarding scope and extent of powers to summon any person as accused during the course of inquiry or trial in exercise of power u/s 319 Cr.P.C. has been set at rest by the Constitution Bench of Hon''ble Supreme Court in case of Hardeep Singh Vs. State of Punjab and Others etc. etc., wherein it has been observed as follows:-

Power u/s 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power u/s 319 Cr.P.C. ..............

The trial Court has found prima facie case to summon the petitioner. This argument of learned counsel for the petitioner that the petitioner was not named in the FIR or has been wrongly attributed the injuries by the complainant, has no substance at this stage. The FIR is only an information to the police regarding the occurrence. It is not required that every minute detail of the occurrence should be got recorded in the FIR. The police may record the statements of complainant and other witnesses separately during investigation. The statement of petitioner as recorded by the Court is unrebutted so far and there was no reason for the trial Court to ignore the same while deciding the application u/s 319 Cr.P.C. The fact that the petitioner was found innocent by the police is no reason to interfere with the impugned order. The plea that the petitioner was not present at the place where the occurrence took place can be taken by him at the appropriate stage.

In view of the above facts and circumstances, I find no merits in this petition and the same is dismissed.

It is, however, made clear that nothing observed in this order shall be termed as expression of opinion of this Court and the petitioner shall be at liberty to take all the plea raised in this petition at the appropriate stage i.e. at the time of framing of charge, defence etc.