Santokh Singh vs State of Punjab and Others

Daya Chaudhary, J.—The present revision has been filed against order dated 9.4.2009 passed by Additional Sessions Judge, Ludhiana vide which the application filed u/s 319 Cr.P.C. for summoning respondents No. 2 to 5 as additional accused has been dismissed.

Briefly, the facts of the case as given in the petition are that FIR No. 183 dated 6.8.2007 under Sections 302/148/149 IPC was registered against accused Buta Singh, Gurbachan Kaur, Mehal Singh, Baaj Singh, Mohinder Singh and Surjit Kaur on the basis of statement made by complainant Santokh Singh. During investigation, accused Mehal Singh, Baaj Singh, Mohinder Singh and Surjit Kaur were found innocent by the police and they were placed in Column No. 2 of the challan. During investigation, the police recorded the statement of Jawala Singh u/s 161 Cr.P.C. Jawala Singh while appearing as PW-1 in the Court, he named Mehal Singh, Baaj Singh, Mohinder Singh and Surjit Kaur as accused for commission of offence. An application u/s 319 Cr.P.C. was moved by the prosecution for summoning of respondents No. 2 to 5 as additional accused on the basis of statement made by Jawala Singh PW-1. The application was dismissed by the Additional Sessions Judge, Ludhiana vide order dated 9.4.2009 which is subject matter of challenge in the present revision petition.

Learned Counsel for the petitioner submits that the learned trial Court has completely ignored the evidence of Jawala Singh PW-1 who has specifically named the above-said accused and there was sufficient evidence to summon them. Jawala Singh PW-1 has clearly stated in his statement that he saw all the accused through the whole of the gate inside the house of Mehal Singh and these accused were armed with deadly weapons and were causing injuries to Kulwinder Singh alias Kinder. As per statement of Jawala Singh PW-1, all the accused actively participated in the incident and they tried to kill the complainant/petitioner by attacking through their deadly weapons and also raised lalkara not so spare the petitioner. Learned Counsel for the petitioner has also relied upon the judgment of the Hon''ble Supreme Court in Rajendra Singh v. Staste of U.P. and Anr. 2007 (3) RCR (Criminal) 1022 in support of his contention.

Mr. Sunil Chadha, learned Counsel for respondents No. 2 to 5 submits that the statement made by Jawala Singh PW-1 was merely a reiteration of the earlier statement made u/s 161 Cr.P.C. before the police and it cannot be considered as an additional evidence and accused-respondents No. 2 to 5 cannot be summoned on the basis of that statement only. Learned Counsel has also relied upon the judgments of Hon''ble the Supreme Court in Ram Singh and Ors. v. Ram Niwas and Anr. 2009 (3) R.C.R. (Criminal) 501, Brindaban Das and Others Vs. State of West Bengal, and of this Court in Harjinder Kaur and Ors. v. State of Punjab 2004 (4) R.C.R. (Criminal) 332 in support of his contention.

I have heard the arguments of the learned Counsel for the parties and have also gone through the impugned order and other documents available on record.

Admittedly, the matter was investigated by the police after registration of the FIR and accused-respondents No. 2 to 5 were found innocent during investigation and they were placed in column No. 2 of the challan. Thereafter, during the course of proceedings, statement of Jawala Singh PW-1 was recorded which in fact, was merely a reiteration of what had been stated by him before the police u/s 161 Cr.P.C. No fresh evidence was there before the Court on the basis of which complicity of accused-respondents No. 2 to 5 could be established.

For summoning u/s 319 Cr.P.C., there has to be some evidence before the Court which would indicate complicity of the person who are sought to be summoned or some material should have come on record which may prompt the Court to believe that the persons so accused are likely to be involved, and their conviction is likely to result in the eventuality of their facing trial, and on the basis of that evidence, the persons so involved can be convicted. The mere statement, ipso fact cannot form the basis of summoning the persons u/s 319 Cr.P.C.

Section 319 Cr.P.C. is reproduced as under:

Power to proceed against other persons appearing to be guilty of offence. (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 inquiry into, or trial of, the offence which he appears to have committed.

(4) where the Court proceeds against any person under Sub-section (1) then--

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(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 Hon''ble Supreme Court in Michael Machado and Anr. v. Central Bureau of Investigation and Anr. 2000 (2) RCR (Crl.) 75 (SC) has observed as under:

The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused. But even then, what is conferred on the Court is only to discretion as could be discerned from the words ''the Court may proceed against such person''. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against each other persons.

In the present case also the statement of Jawala Singh PW1 is merely a reiteration of the allegations made before the police u/s 161 Cr.P.C. That evidence has already been investigated by the police and on the basis of that evidence, respondents No. 2 to 5 were found innocent by the police during investigation and they were kept in column No. 2 of the challan. This view has been held by various Courts including the Hon''ble Apex Court that Court cannot summon the accused only on the basis of statement of the complainant/witness which has already been considered by the police. For summoning u/s 319 Cr.P.C. there has to be some evidence which would indicate the complicity of the person who are sought to be summoned. The mere statement of the complaint or witness ipso facto cannot form the basis of summoning the persons u/s 319 Cr.P.C.

In view of the discussion made above and the settled legal position, I do not find any merit in the contentions raised by the learned Counsel for the petitioner and the present revision petition being devoid of any merit, is dismissed.