Teja Singh vs State of Punjab

R.L. Anand, J. (Oral)

This is a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India filed by Teja Singh son of Wariyam Singh praying for the quashment of the summoning order of the petitioner dated 16.5.1998 Annexure P4 vide which the Judicial Magistrate Ist Class summoned the petitioner Teja Singh and one Darshan Singh to face the trial along with accused against whom the challan was already submitted by the State.

F.I.R. No. 29 dated 13.3.1994 was registered at the instance of Shri Sadhu Singh under Sections 326/324/342/323/34 IPC in Police Station Payal, district Ludhiana, who alleged that on 12.3.1994 at about 3.00 p.m. in the evening he and his brother Darbara Singh were returning to their house from the field store and when they were passing by the house of Jagtar Singh, Jagtar Singh son of Jarnail Singh armed with gandasa, Karnail Singh son of Ujjagar Singh armed with gandasa and Pamma son of Bhag Singh armed with stick, came out by raising Lalkara. Jagtar Singh exhorted that they should not be allowed to escape today and thereafter he gave a gandasa blow on his head which hit him on left side of his head. Karnail Singh gave a gandasa blow on the right side of the head of the complainant, as a result of which he fell down. When his brother Darbara Singh came to his rescue, Pamma gave a stick blow on the right hand of his brother. Baldev Singh also gave stick blow to his brother, who ran away to the house raising the alarm `Mar ditta, mar ditta''. Then all the persons along with their weapons ran away from the spot after inflicting injuries to him.

After the submission of the challan, Nachattar Singh, who is the real brother of Sadhu Singh, appeared as PW1 and made the following statement in his examinationinchief :

"On 12.3.94 at about 6.15 p.m. I was coming to my house from Dairy. When I reached near a gate of village then I heard the Raula from BabaShaheedan side. Then Teja Singh son of Waryam Singh raised Lalkara to the effect that he should not be spared today and he be picked up. Then Jagtar Singh son of Jarnail Singh was having Gandasa, Karnail Singh s/o Ujjagar Singh was also having Gandasa, Ramma (Pamma ?) s/o Bhag Singh, Darshan Singh son of Bhag Singh were having sticks in their hands started beating me. Jagtar Singh gave a Gandasa blow on my head straight way and Karnail Singh also gave gandasa blow on back of my head, thereafter I fell down. In the meanwhile Teja Singh asked other accused to take me inside the house of Teja Singh and there all accused gave me stick blows. Thereafter I raised alarm and the people gathered there and they took me to civil hospital, Doraha in injured condition. My statement was recorded at civil hospital, Doraha and same is Ex. PA which bears my signatures."

S/Shri Teja Singh and Darshan Singh were not challaned by the police and the challan was submitted against the other persons in the Court of Area Magistrate.

After framing the charge against the accused person, before the trial Court, injured Nacchattar Singh moved an application to summon Teja Singh and Darshan Singh as accused. The application was opposed by the defence on the plea that the prosecution has not examined any witness in complete and, therefore, accused Teja Singh and Darshan Singh could not be summoned much less on an application under Section 319 Cr.P.C. The learned Magistrate vide impugned order dated 16.5.1998 came to the conclusion that after perusing the report under Section 173 Cr.P.C. and statement of injured Nachattar Singh recorded by the Local Commissioner on oath, it reveals that Teja Singh had raised a Lalkara and he also exhorted his coaccused to take the injured inside the house and thereafter all the accused gave injuries to Shri Nachattar Singh with sticks. Darshan Singh son of Bhag Singh was also having a stick in his hand and he started beating Nachattar Singh. The learned Magistrate further came to the conclusion that Teja Singh and Darshan Singh were equally responsible for the offences for which the other accused are facing trial and there was sufficient evidence on the record to summon Teja Singh and Darshan Singh to face the trial in the Court and accordingly these two persons were summoned to face the trial along with other coaccused irrespective of the fact that Teja Singh and Darshan Singh were shown in column No. 2. Aggrieved by the said order, the present petition in the High Court for the quashment of the impugned order.

I have heard Shri Sanjeev Manrai, Advocate, on behalf of the petitioner and after hearing the learned counsel for the petitioner I am of the considered opinion that this petition is totally devoid of any merit and should be disposed of and dismissed in limine at the motion stage itself and there is no necessity to issue the notice to the State. Firstly, this petition is liable to be dismissed on the short ground that the impugned order was subject to revision. The petitioner has not adopted the legal remedy available to him under the law and he has decided to file the petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India. The provisions of Section 482 Cr.P.C. are supposed to be used sparingly and in exceptional case. The object of Section 482 Cr.P.C. is not to override the express provisions under which the remedy to a litigant lies. Be that as it may, now it has to be examined as to whether the order passed by the learned Magistrate is correct according to law or not. When the investigation of the case is complete, the investigating agency is supposed to submit the report under Section 173 Cr.P.C. in the Court of Area Magistrate. Section 190 Cr.P.C. lays down that the Magistrate of the first class may take cognizance of any offence upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. Thus a Magistrate can take the cognizance of the offence upon a police report if such police report discloses such facts which constitute an offence and even upon an information received from any person that a particular offence has been committed. This section does not detract the Magistrate to record the substantive evidence of the witnesses before taking cognizance against a person who has not been challaned by the police. The only requisite of the law is that there should be a report before the Magistrate and such report should disclose such facts constituting a particular offence or even a third person other than the police officer can bring to the notice of the Magistrate that the particular person has committed a particular offence and for that commission of offence such person should be tried. There is one more provision in the Code of Criminal Procedure i.e. Section 319. This section lays down that 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. Now the point of determination is whether before applying the provisions of Section 319 Cr.P.C. it is incumbent upon the part of the Magistrate to record the evidence of all the witnesses before summoning a person to face the trial along with the accused already facing the trial before the Magistrate. I may here emphasise that I am dealing a case where a Magistrate has summoned Teja Singh and Darshan Singh in an offence triable by a Magistrate itself and not a case where the accused has committed to the Court of Session. In the subsequent eventuality, the dictum of the Hon''ble Supreme Court reported as 1998(4) RCR(Crl.) 552 : JT 1998(6) SC 512, Ranjit Singh v. State of Punjab would come into play as their Lordships have been pleased to hold that once the case is committed to the Court of Sessions and till the charge is framed against the persons who were committed to the Court of Session, there is no intermediary stage for the Court of Session to invoke the provisions of Section 319 Cr.P.C. But here, the moment the challan is presented in the Court of Magistrate and he decides to take cognizance as per the provisions of Sections 190/193 Cr.P.C. he conducts the inquiry. After the framing of the charge against the accused, who were challaned by the police, he starts the trial. In both the eventualities if the Magistrate comes to the conclusion that it appears to him that a particular person, in his opinion, has committed the offence and he should also be tried along with the persons already before him, he has the power to summon such persons though they have not been challaned by the police. The matter has been recently considered by the Allahabad High Court in case Ashok Kumar v. State of U.P., 1998(3) RCR(Criminal) 283 where the Hon''ble Lordship of Allahabad High Court after examining the provisions of Section 319 Cr.P.C. came to the conclusion that an accused who was not named in F.I.R. and, if named, was discharged after investigation can be summoned under Section 319 Cr.P.C. if the Court is satisfied on the evidence of a witness though he was not at all cross examined. The Hon''ble Lordship further held that evidence in various provisions of Cr.P.C. has been used in a different sense and would not necessarily include the crossexamination and reexamination. Also it was observed while referring to the provisions of Section 3 of the Evidence Act and Section 299 Cr.P.C. that the evidence of a witness who is not cross examined can be considered by Court taking into consideration the provisions of Section 299 Cr.P.C. In other words, even on the allegations of the prosecution coupled with the statements of the witnesses recorded under Sections 161 Cr.P.C., the examinationinchief of a witness are the good pieces of evidence on the basis of which the Magistrate can exercise the option to summon a person as an accused. The similar point also came for consideration before this High Court in Karam Singh v. State of Punjab, 1997(1) All India Criminal Law Reporter 679, where it was observed by his Lordship after taking note of the various judgments of the Hon''ble Supreme Court and other High Courts that a person who has not been arrayed as an accused in the challan filed in the Court, the Magistrate or Session Courts after examining the F.I.R. and other documents submitted along with challan under Section 173 Cr.P.C. can summon any person to stand trial as an accused along with other accused set up for trial by the police. Paras No. 8 and 9 of the judgment Karam Singh (supra) can be quoted as under for strength and support :

"8. The precise point which is now being debated i.e. whether the Court of Sessions without itself recording evidence, can summon a person to stand trial as an accused (along with others committed to it by a Magistrate) on the basis of documents in the final report of the Investigating Officer under Section 173 Cr.P.C. was subject matter of adjudication in the Division Bench judgment in Lal Chand''s case (supra). In fact reference by the learned Single Judge was necessitated in view of some of the conflicting views expressed in single Bench judgments of this Court. The Division Bench after considering views taken by this Court as well as by other High Courts and also keeping in view the decisions of the apex Court in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 and Hareram Satpathy v. Tikaram Agarwala, AIR 1978 SC 1568 as well as the decision in Joginder Singh v. State of Punjab, AIR 1979 SC 339 held that a Magistrate trying a warrant case as also a Court of Sessions having once validly taken cognizance of the offence on the police report (when considering the materials before it for framing a charge) is not only entitled but indeed duty bound to summon a person as an accused to stand trial before it, if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent up as such. The Court further held, "Therefore on the larger canon of construction there appears to be no logic for narrowly construing the statute so as to denude the Court of Session of the power to summon a person to stand his trial at the outset even when wholly convinced of a prima facie case against him on the basis of materials in the final report which is admittedly adequate for framing a charge against the committed accused under Section 228 or discharging him under Section 227 of the Code." Resultantly, the Court held that "the Court of Session, without itself recording evidence can summon an additional accused to stand trial along with others already committed to it on the basis of the documents in the final report of the Investigating Officer under Section 173, in view of the provisions of Sections 227 and 228 of the Code."

The precise point came up for consideration before Patna High Court in Sk. Latfur Rahman''s case (supra) (F.B.) and the Court held that a Court of Session, prior to the framing of charge, can, without itself recording evidence, summon a person as an additional accused on the basis of the documents in the final report of the Investigating Officer under Section 173 Cr.P.C. independently of the provisions of Section 319 thereof. It further held that once a Court of competent jurisdiction, be it a Magistrate or the Court of Sessions, takes cognizance of the offence, it is not only within the Court''s powers to summon any one who, on the adequate materials, appears to it to be prima facie guilty of the said offence but indeed it is its duty to do so."

The learned counsel for the petitioner submitted fairly that there are contrary views of different High Courts on this aspect and in this view, the matter should be referred to the larger Bench. I am not inclined to accept the contention of the learned counsel for the petitioner. The provisions of Section 190 and Section 319 Cr.P.C. do not leave in my mind any ambiguity. Moreover, when the Hon''ble Supreme Court is clear on a point, there is no necessity to refer the point in issue to a larger Bench. The learned counsel for the petitioner relied upon Sohan Lal and others v. State of Rajasthan, AIR 1990 SC 2158, wherein the following principle was laid down :

"The provisions of Section 319 have to be read in consonance with the provisions of Section 398. Once a person is found to have been the accused in the case he goes out of the reach of Section 319."

This observation of the Hon''ble Supreme Court is not applicable to the facts in hand. In the cited case earlier the accused was discharged and thereafter the application was moved under Section 319 Cr.P.C. to summon those accused persons as accused. In those conditions the observations were made. The counsel then relied upon Jagvinder Singh v. State of Punjab and another, 1996(2) Recent CR 81. Even this authority will not come to the rescue of the petitioner in the given circumstances. Here is a case where the statement of Nachattar Singh was recorded by the Local Commissioner on oath and then the application was moved. Also the counsel for the petitioner relied upon a judgment of Single Bench of this Court reported as 1981 Punjab Law Reporter 685, Balwinder Singh and another v. The State of Punjab. Still this judgment also does not advance the case of the petitioner keeping in view the facts in hand.

In this view of the matter, I do not see any merit in this petition and dismiss the same in limine.