Som Nath vs State of Punjab

R.L. Anand, J.

Shri Som Nath has filed the present petition under Section 482, Cr.P.C., for setting aside the order (Annexure P1) dated 8th October, 1996 passed by the Court of Additional Sessions Judge, Ludhiana, who refused to summon respondent No. 2 as accused in case FIR No. 1 dated 5th January, 1995, Police Station Industrial Area, Ludhiana, for offence under Sections 307/323/324/148/149, Indian Penal Code.

Before I proceed further I may state that respondent No. 2 Shri Baljit Rai alias Guljit Rai was found innocent during the course of investigation and he was not challaned. A preliminary objection was taken by the learned counsel appearing for respondent No. 2 that the petition under Section 482, Cr.P.C., was not maintainable as the impugned order was subject to revision. Concurring with the objection raised by Shri J.S. Mann, Advocate, I am of the view that once an application under Section 319, Cr.P.C., has been rejected by the trial Court, it does not remain an interlocutory order as it adjudicates the controversy finally. Such an order is subject to revision, which was not filed. When an alternative remedy is available, the provisions under Section 482, Cr.P.C. cannot and should not be involved until or unless some exceptional ground is made out.

Facing this difficulty posed by the learned counsel appearing on behalf of respondent No. 2, learned counsel for the petitioner then submitted that the present petition under Section 482 Cr.P.C., may be treated as a revision in the interests of justice because the opposite party is already before this Court. This request of the learned counsel for the petitioner is genuine and, therefore, I treat this petition as a revision under Section 401, Cr.P.C.

Treating this petition as a revision against the impugned order, this Court has to see whether there is a material irregularity or patent illegality which has been committed by the learned trial Court in dismissing the application under Section 319, Cr.P.C. So far as the law is concerned, it is well settled that the revisional Court can only interfere in the impugned order when there is a glaring and inherent irregularity or patent illegality in the impugned order.

Learned counsel Shri Bipan Chai, learned counsel for the petitioner, tried to convince this Court with the help of Section 319, Cr.P.C., that there was a prima facie evidence against respondent No. 2 and in these circumstances it was obligatory on the part of the trial Court to summon respondent No. 2 as an accused. Section 319, Cr.P.C., reads as follows :

"319. 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 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."

A reading of subsection (1) of Section 319, Cr.P.C., shows that if during the course of any inquiry or trial it appears to the trial Court that the offence has been committed by any person not being the accused before him, and that such person can also be tried together with the accused before the Court; the Court has the power to proceed against such person for the offence which he appears to have committed. The Legislature has used the word "appears" at two stages in Section 319, Cr.P.C. Can this Court give a loose interpretation to the word "appears" by stating that since the complainant has come with an application under Section 319, Cr.P.C., before the Court, therefore, it should be readily inferred that the person against whom the proceedings under Section 319, Cr.P.C. are sought to be started, should be summoned as an accused ? Learned Deputy Advocate General, appearing on behalf of the State, has also tried to support the case of the petitioner by stating that the word "appears" should be given a vast interpretation so as to cover those cases also where there are allegations even to the extent that a particular person has committed an offence. In the opinion of this Court, these powers under Section 319, Cr.P.C., are extraordinary powers. Under Section 193 read with Section 319, Cr.P.C., a Court has the power to summon any person as accused, who has been shown in column No. 2 or who appears to have committed an offence. Before resorting to the provisions of Section 319, Cr.P.C. in the opinion of this Court, some reasonable basis must be before the Court so as to come to the conclusion that a particular person should be summoned as an accused. The mere ipsi dixit of the complainant would lead to disastrous results to the liberty of an individual. Any loose interpretation to the word ''appears'', which is not corroborated prima facie with any convincing explanation from the side of the prosecution, would be a mental agony to a person who can be summoned as an accused at the hands of a particular complainant.

Reverting to the facts in hand, according to the case of the prosecution, respondent No. 2 was armed with Dang and he repeated the Dang blows three times on the person of Shri Som Nath injured. Injuries Nos. 3 and 6 have been allegedly attributed to respondent No. 2 and I would like to quote these injuries with approval in order to appreciate the contention raised by the learned counsel appearing on behalf of the petitioner :

"(3) Abrasion 1/4 cm. x 1/4 cm. on the bridge of nose with ooz and tenderness. Xray was advised."

"(6) Complained of pain on back of neck."

Learned counsel for the petitioner submitted that these injuries could be the result of lathi blows and it was not within the domain of the trial Court to probe further and there was enough evidence prima facie from which the trial Court could formulate the opinion that it appeared to him that Shri Baljit Rai alias Guljit Rai, respondent No. 2, had committed the offence and his trial was necessary.

On the contrary, Shri J.S. Mann, learned counsel appearing on behalf of respondent No. 2, has submitted that the discretion has rightly been exercised in favour of respondent No. 2 and it cannot be said from any stretch of imagination that such discretion has been patently used in an illegal manner. According to Shri J.S. Mann, these two injuries by no stretch of imagination could be caused by a Dang and this aspect of the case has been considered before passing the impugned order.

I do not agree with the submission raised by the learned counsel appearing on behalf of the petitioner. A reference can be made to the statement of the doctor, who was examined in the trial Court and the prosecution failed to get elucidation from the statement of the doctor whether injuries Nos. 3 and 6 were could be the result of the Dang blows. A blanket statement has been made by the doctor that injuries Nos. 3 and 6 were caused by a blunt weapon. Shri Bipan Ghai, learned counsel for the petitioner, wanted to take the benefit of the words "blunt weapon" by stating that Dang is a blunt weapon and, therefore, there was enough material before the trial Court to summon respondent No. 2 as an accused. This Court does not agree with the opinion formulated by Shri Ghai keeping in view the extent and nature of injuries Nos. 3 and 6. Rather the defence had explored the possibility with regard to injuries Nos. 3 and 6 and the doctor had stated before the trial Court that the possibility of injuries Nos. 3, 4 and 5 on the person of Som Nath, being caused by forward fall on hard and tough surface could not be ruled out. It may not be wrong on my part if I say that injury No. 6 was not an injury on the person of the injured, as he was only complaining of pain. When this interpretation with regard to injury No. 3 was available to the Court of Session/trial Court, the learned Additional Sessions Judge, Ludhiana, was justified in declining the request of the petitioner for summoning respondent No. 2 under Section 319, Cr.P.C.

This Court is exercising the revisional powers and I have already stated above that this Court will interfere only when convinced about the patent illegality committed by the trial Court. Even the difference of opinion, if any, visavis the order passed by the learned Additional Sessions Judge, Ludhiana, would not justify this Court in invoking the powers under Section 401, Cr.P.C.

In the light of the above, I do not see any patent illegality or material irregularity in the impugned order. Accordingly, present revision petition stands dismissed.