Vijay Kumar vs State Of Haryana And Others

Sumeett Goel, J

The present criminal revisioon petition has been filed by the petitioner-complainant seeking setting aside of the impugned order dated 07.04.20221, passed by the learned Sesssions Judge, Sirsa, whereby the applicatioon filed under Section 319 Cr.P.C. moved by the prosecution for summoninng the private respondents No.2 to 4, namely Baldev Singh son of Mani Ram, Vinod Kumar and Naresh Kumar sons of Om Parkaash (respondeent Nos.2 to 4 herein), to face thee trial, has been dismissed.

Shorn of non-essential details, the relevant factual matrix of the lis in handd reads thus:

(i). FIR No.175 dated 17.07.20118 was registered at Police Station Ellenabadd, District Sirsa, under Sections 323, 325, 326, 341, 367, 506 reead namely Vijay Singh. In the said FIR,, apart from the accused persoons namely Surender Kumar, Rajender Kumar and Om Parkash, the names of the private respondents (respondent Noos.2 to 4 herein), were also fiind mentionedd.

(ii). Thereafter, upon complettion of the investigation, the Investigatting Officer found respondent Nos.2 to 4 (herein) innocent and placed their names in column No.2 off the final report (challan) whhile submitting the same against the other three aforesaid accused.

(iii). During the course of trial, thhe petitioner-complainant appeared as PW-1 on 20.02.2021 and reiterated the allegations against the private respondennts, assigning them specific roles in the alleged assault. On the basis of thhis testimony, the prosecution moved an application under Section 319 Cr.P.C. seeking summoning of respondents No.2 to 4 as additional accused.

(iv). Vide impugned order dated 07.04.2021, the learned Sessioons Judge, Siirsa, after hearing the parties,, dismissed the said application. Aggrievedd against the said order, the preesent criminal revision petition has been preferred by the complainant/injuredd.

Learned counsel for the pettitioner has iterated that the Court below haas failed to appreciate the eviidence in its correct perspective. Learned counsel has further iterateed that the statement of the complainaant/injured witness (petitioner herein), who stepped into the witness box as PW-1, specifically attribuutes distinct injuries to each of the proposed accused (respondent Nos.2 to 4 herein), which sufficiently establishees their complicity in the commmission of the offence. To buttress his argumments, learned counsel for the peetitioner has placed reliance on the dicta of the judgment of the Hon’ble Supreme Court titled as Hardeeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92, to contend that the degree of satisfaction required under Section 319 Cr.P.C. is equivalent to that requiired at the stage of framing off charge and the testimony of an injured eye-witness should ordinarily be treated as trustworthy unless contradictted by strong evidence. On thhe strength of above submissions, learned coounsel for the petitioner has cannvassed for grant of the petition in hand.

Learned State counsel, while raising submission in tandem with the avermments made in the petition, has submitted that during the course of evidence, the complainant, while depoosing as PW-1, has categoricaally attributed causing of injuries by the private respondents by attributing specific and distinct injuries roles to each of them and there exists sufficient evidence to implead them as additional accused. This fact also stands duly corroborated in his complaint dated 09.07.2018 recorded by the Police.

Per contra, learned counsel appearing for the respondent Nos.2 to 4 have submitted that the Court below has passed a well reasoned order after due appreciation of the material on record and there was no freesh evidence warranting the summoning of the proposed accused (i.e. respondennt Nos.2 to 4 herein). Learned counsel has further contended that the meree reiteration of allegations already investigated and fouund unsubstanntiated cannot form the basis of invoking the extraordinary power under Section 319 Cr.P.C. On the strrength of these submissions, the dismissal of the petition in hand is entreated for.

I have heard learned counssel for the rival parties and haave perused thhe record carefully with their able assistance.

Indubitably, Section 319 of the Cr.P.C. empowers a Court to arraign anny person, as an additional accused in an ongoing trial, who is not already an accused before it, if the evideence suggests that such person has committed the offence, which is the subjject matter of that trial, and should be tried with accused persons already facing trial. The jurisprudenttial bedrock of Section 319 Cr.P.C., 1973 finnds its resonance in the immutable legal maxim Judex Damnatur Cum Nocens Absolvitor—the judge is condemneed when the guilty is acquitted. This provision vests immennse discretionnary authority in the trial court to summon any person, other thhan originally arraigned accused, to face trial as an additional accused. However,, as has been enunciated and settled by way of a lineage of authoritative judicial pronouncements, the power under Section 319 of Cr.P.C, 1973 is inherently extraordinary, and its invocation is mandated to be scrupulously judicious and sparing. It is not to be exercised casually or cavalierlyy, nor merely on the subjective opinion of the trial court judge that another individual may also be complicit in the offence. Rather, this exceptional authority must only be utilizeed where compelling circumstances necessitatte such action and where evidennce before the court is sufficienntly strong and cogent. The evidentiary standaard required for a court to exerccise its discrettion under Section 319 Cr.P.C., 1973 for summoning an additional accused, is significantly higher than the prima facie threshold applicablee at the stage of framing charges; the Court must achieve a degree of satisfaction amounting to an assurance that evidennce, if remaining unrebutted and uncontrovverted, would ultimately culminate in the conviction of individual proposed to be summoned as additional accused. Consequently, the court is obligated to keep all relevant factors in consideration, avoiding any mechanical application of power merely because some implicatory evidennce has surfacced on record. The scope of Seection 319 Cr.P.C., concerning the summoninng of additional accused was examined in Hardeep Singh case (supra), wherein the Hon’ble Supreme Court has framed five questions to lay down the guiding principles which aree as under:

“110. We accordingly sum up ouur conclusions as follows:

Question Nos. 1 & III

Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?

AND

Q.III Whether the word "evidennce" used in Section 319(1) Cr.P.C. has been used in a comprehensive seense and includes the evidence colleccted during investigation or the wordd "evidence" is limited to the evidence recorded during trial?

A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken againsst a person not named as an accuused but against whom materials are available from the papers fileed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused? Secttion 319 Cr.P.C., significantly, uses twwo expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charrge, an inquiry can only be understoood to be a pre-trial inquiry. Inquirries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in couurse of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose naame has been shown in Column 2 of the charge-sheet. In view of the above position the word 'evidence' in Secttion 319 Cr.P.C. has to be broadlyy understood and not literally i.e. as evidence brought during a trial.

Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. coould only mean evidence tested by cross-examination or the court can exerccise the power under the said provission even on the basis of the statemment made in the examination-in-chief of the witness concerned?

A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is discloseed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence fromm the stage of taking of cognizance, the Court need not wait for the evideence against the accused proposed to be summoned to be tested by cross-examination.

Q. IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arrraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the courtt is satisfied that the accused summonned will in all likelihood be convicted??

A. Though under Section 3199(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Coourt initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. wouldd be the same as for ?framing a chharge. The difference in the degree of satisfaction for summoning thee original accused and a subsequuent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosedd against the newly summoned accussed. Fresh summoning of an accused will result in delay of the trial - thereffore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question No. V

Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

A. A person not named in thhe FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned unnder Section 319 Cr.P.C. provided from the evidence it appears that succh person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. The matters be placed before the appropriate Bench for final disposall in accordance with law explained heereinabove.”

The power under Section 319 Cr.P.C. is discretionary and extraordinnary which is to be exercised spparingly and only when strong and cogent evidence comes before the Court indicating that the person soughtt to be summoned has committed the offence,, rather than on mere probability of his complicity. The Hon’ble Supreme Court in Hardeep Singh (supra) as also in suubsequent judgments has reiterated that such power should not be exercised in a routine manner merely onn the basis of suspicion or earlier allegationns rejected during investigation. Having ruminated upon the scoope and ambiit of power vested by virtue of Section 319 Cr.P.C., 1973, this Court shall delve into the factual milieu of the case in hand in light of afoore- discussed guiding principles.

In the present case, it iss undisputed that the name of respondennts No.2 to 4 was mentioned in the FIR, but during the course of investigattion, the police, after examining the material and statements on record, foound them innocent and placed them in column No.2. When the petitioner stepped into the witness box as PW-1 during trial, his statement was largeely a repetition of the versioon contained in the FIR. In the considered opinion of this Court, no new or independent material has beeen brought on record which could justify thee exercise of powers under Section 319 Cr.P.C. A profitable reference in this regard can be made to the dicta passed by the Hon’ble Supreme Court in a case titled as ‘Sarabjit Singh and Another Vs. State of Punjab and Another, 2009 AIR Supreme Court 2792, relevant whereof reads thus:

“17. ………An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnessses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredientss of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercisee of the extraordinary jurisdiction………”

Moreover, the Court below has noted this aspect and found that the deposition of the petitioner does not bring forth any additional evidennce or circumstance which could prima facie establish the active participation of the privatte respondents in the alleged occurrence. The Court below further observed that there was considerable delay in lodging the FIR as the occurrencce has taken place on 07.07.20118 whereas the FIR was registered on 17.07.2018 which raised doubts regardding the veracity of the subsequent allegationns against the proposed accused.

This Court; therefore, finds no perversity or illegality in the reasoning of the learned Sessions Juddge. The reliance placed by the petitioner on the judgment titled as Hardeep Singh case (supra) is Section 319 Cr.P.C. must be based on evidence stronger than mere probabilitty and not on mere reiteration of earlier allegations which were found to be unsubstantiated. For the foregoing reasons, this Court does not find any error in the impugned order paassed by the Court below. In the contemplaated opinion of this Court, the trial Court has appropriately deealt with the application in question by dismmissing the same. The complainant while ropping in total 5 persons as accussed in the case, attributed separate weapon as well as separate specific pinpoointed injury on distinct body paarts with accuurate precision, out of which 4 injuries are superficial being swelling and tenderness on separate partss of body. It does not meet the test of prudennce that 5 armed individuals, while attacking the complainant would only inflict one such injury each, just to register their presence in the offence. In view of these accentuating faccts, exaggeration of involvementt of number of accused persons cannot altogetther be ruled out.

Pertinently, this Court is veryy well cognizant of the sociological reality thhat frequently attends the iniitiation of criminal proceedings, manifestinng as a demonstrable tendency on part of the informantt/complainant to amplify the arraay of accused beyond the principal perpetratoors. This pattern often results in the over-implication of peripheeral individuals—particularly the relatives, family members, or close associaates of the main accused—risking the converssion of the criminal process into an instrumennt of coercion or harassment agaiinst tangentially connected partiees.

In view of the prevenient ratiiocination, it is ordained thus:

(i) The impugned order dated 07.04.2021 passed by the Sessions Judge, Sirsa, does not call for any interrference and thus, instant revisiion petition deserves dismissal. Ordered accorrdingly.

(ii) Any observations made and//or submissions noted hereinaboove shall not have any effect on the merits of the case and the Court below shhall proceed further, in accordance with law, without being influencced therefrom.

(iii) Pending application(s), if anyy, shall also stand disposed off.