Vishal Jyani @ Chintu vs State of Punjab

M.L.Koul, J.

The petitioner Vishal Jyani @ Chintu who was involved for the commission of crime under Sections 326/324/323/34 of the Indian Penal Code in FIR No. 23 registered with the Police Station City Fazilka, has come up for quashing of the order passed by the learned Sub Divisional Judicial Magistrate, Fazilka dated 19.12.1995, whereby the present petitioner along with his coaccused Pawan Kumar have been summoned by the Magistrate to face the trial with the other accused against whom a report under Section 173 of the Code of Criminal Procedure, has been filed in the trial Court and the names of the petitioner and his companion Pawan Kumar have been given in column II of the report filed by the police under the said provisions of the Criminal Procedure Code.

It is contended by the learned counsel for the petitioner that the trial Magistrate could summon the petitioner if during the trial of the case some evidence was recorded about his involvement in the commission of the crime. He could not summon the accusedpetitioner, when the other accused in the case have not yet been chargesheeted.

According to him an embargo is laid down under Section 319 of the Code upon a Court not to summon an accused who for short of evidence is not booked for trial by the police. He can be summoned only if on trial of his coaccused some evidence is recorded and found that such a person is involved for the commission of any offence. In the instant case no evidence has been recorded by the Magistrate against the petitioner and the other accused have not been chargesheeted so far. Hence, summoning of the accused is illegal and requires to be quashed.

I have given my thoughtful consideration to this legal position of the case as raised by the learned counsel for the petitioner.

In my opinion no illegality or impropriety has been committed by the learned Magistrate in summoning the petitioner in the case whose name was fully described in the FIR and specifically it is mentioned that as to what part was committed by him in the commission of the crime.

Sections 319 and 193 of the Code of Criminal Procedure are both complimentary and supplementary in purpose and application and have to be read together in order to see whether the Magistrate had the power to summon the accused described in the FIR and challaned in column II of the report under Section 173 of the Code of Criminal Procedure.

In this regard, it is very essential to make mention of the authoriative pronouncement made by the Hon''ble Supreme Court reported in 1993(2) SCC 16. Their Lordships have held that section 319 of the Cr.P.C. can be invoked both by the court having original jurisdiction as well as the court to which the case has been committed or transferred for trial. Their Lordships have discussed in length the import and application of Section 319 Cr.P.C. read with Section 193 of the Code of Criminal Procedure. They have envisaged the original jurisdiction of the Sessions Judge, how he can exercise the powers in calling the other accused for trial when they are fully described in the FIR or their names do not figure in the evidence but subsequently while recording the evidence it is found that they were connected with the commission of the crime. Their Lordships have concluded that once the case is committed to the court of Sessions by the Magistrate under the Code, the restrains placed on the powers of the court of Sessions to take cognizance of an offence as a court of original jurisdiction gets lifted.

In the instant case the Magistrate in his original jurisdiction under Section 190 of the Code of Criminal Procedure has taken the cognizance of offence mentioned in the impugned order upon a police report that such offence has been committed. The Magistrate under his original jurisdiction has taken cognizance of the offence from the report lodged with the police by the complainant where it is mentioned that the petitioner gave a blow on the person of the complainant which struck on the reverse side of his palm and the other accused also participated in the occurrence by inflicting injuries on the person of the complainant. The complainant had sustained injuries and was admitted in the hospital as well where he was dressed up by the doctor.

From the evidence collected by the police, the Magistrate found that the petitioner was prima facie connected with the commission of the crime and this opinion is formulated by him after he went through the record of the case and the evidence collected by the police during investigation under Section 161 Cr.P.C. including seizure memo etc. This inherent power has been exercised by the learned Magistrate upon the police report and the evidence collected by the police and the petitioner can defend his case before the Magistrate during the trial of the case and at the moment he cannot take a stand that the evidence collected by the police was deficient. There is sufficient evidence on the record which connected the accused with the commission of the crime. In no manner, the learned Magistrate has exercised his jurisdiction illegally, rather has proceeded in the matter in accordance with law and has correctly summoned the person who is one of the main culprits in the commission of the crime.

Hence, this petition fails for being without merit and is dismissed as such.