Narender Singh Parmar Vs State of Hp and Others

For the Petitioner	: Mr. Bimal Gupta, Senior Advocate with Mr. Devender Chopra and Mr. Gurinder Singh Parmar, Advocates.
For the Respondent	: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi
	Chauhan & Mr. Anish Banshtu, Deputy
	Advocates General.

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Sandeep Sharma, Judge (Oral)

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Instant Criminal Revision Petition filed under Section 397

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read with Section 401 Cr.P.C, lays challenge to order dated 16.10.2023, passed by learned Judicial Magistrate, First Class, Court No. 2, Amb, District Una, Himachal Pradesh, whereby an application under Section 319 Cr.P.C., filed by the prosecution seeking to array/ summon the petitioner as an accused in Criminal Case No. 269I/2019 was allowed, and the petitioner was summoned as an accused in the case.

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Whether reporters of the local papers may be allowed to see the judgment?

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Quintessential facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties, are that one Shri Sadhu Ram (hereinafter referred to as the ‘Complainant’), lodged FIR No. 98 of 2019 at Police Station, Amb, District Una, alleging therein that on 08.07.2019, while he visited his village to attend a Bhandara , he pointed out to his brother Ranjeet Singh that he has wrongly burried one wooden pole on the land in his possession, who thereafter alongwith other accused gave him beatings and at that time, one Narender was also present, who though did not give any beatings, but instigated others to beat him. After completion of investigation, police presented the Challan in the competent Court of law, wherein petitioner herein was not arraigned as an accused, but his name was kept in column No.12.

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Learned trial Court, being satisfied that a prima facie case exists against the accused, named in the FIR, proceeded to frame charges against Ranjeet Singh, Rajender Singh, Sheela Devi, Kundan Singh, Sapna, and Pooja.

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During the pendency of the trial, prosecution, after recording the statement of complainant Sadhu Ram, moved an application under Section 319 Cr.P.C., praying therein to summon petitioner Narender Singh Parmar as an accused. Learned Court below, vide order dated 16.10.2023, allowed the application and summoned the petitioner-accused. Being aggrieved and dissatisfied with the aforesaid order, petitioner has approached this Court in the

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instant proceedings, praying therein to set aside the aforesaid impugned order.

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Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Bimal Gupta, learned Senior Advocate duly assisted by Mr. Devender Chopra, Advocate, learned counsel representing the petitioner, is that learned Court below, while passing the impugned order, failed to take note of statement made by the complainant under Section 154 Cr.P.C. as well as his son and daughter-in-law, wherein they categorically denied factum of beatings, if any, given by the petitioner herein. While making this Court peruse statement of the complainant recorded under Section 154 Cr.P.C., and the statements of Smt. Babita Devi and Jagtar Singh under Section 161 Cr.P.C., Mr. Gupta, learned Senior counsel representing the petitioner, submitted that at no point of time it came to be disclosed that petitioner herein was present on the spot and he instigated Ranjeet Singh and other accused to give beatings to complainant Sadhu Ram, but yet Court below taking note of statement made by the complainant in trial, wherein for the first time, he named petitioner, proceeded to summon him as an accused, which is not permissible. While referring to the judgment passed by Hon'ble Apex Court in the case titled Hardeep Singh v. State of Punjab and others, (2014) 3 Supreme Court Cases 92, Mr. Gupta, submitted that at the time of deciding application under Section 319 Cr.P.C., Court is required to apply same principles as are followed at the time of framing of charge. However, in the instant case, Court only took note

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of statement made by complainant during trial, completely ignoring his earlier statement as well as statements of prosecution witnesses, who categorically denied factum, if any, of petitioner’s having instigated other accused to give beatings to the complainant.

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Mr. Vishal Panwar, learned Additional Advocate General, while supporting the impugned order, submitted that there is no illegality or infirmity in the same and as such, no interference is called for. He submitted that if the statement made by complainant during trial is read juxtaposing his earlier statement made under Section 154 Cr.P.C., it clearly emerges that petitioner Narender Singh Parmar was not only present at the spot at the time of occurrence, but he also instigated Ranjeet Singh and other co- accused to give beatings to the complainant, and as such no illegality can be said to have been committed by Court below, while passing the impugned order.

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Having heard learned counsel representing the parties and perused the record vis-à-vis reasoning assigned in the impugned order passed by learned Court below, this court is persuaded to agree with learned Senior Advocate representing the petitioner that same is not tenable in the eye of law for the reason that Court concerned, while passing impugned order, failed to take note of statement of complainant recorded under Section 154 Cr.P.C. as well as other prosecution witnesses, namely Babita Devi and Jagtar Singh, who otherwise happen to be daughter-in-law and son of the complainant recorded under Section 161 Cr.P.C.

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If the statement of the complainant recorded under Section 154 Cr.P.C., on the basis of which, FIR came to be lodged is read in its entirety, he nowhere stated that person, namely Narender Singh Parmar was present on the spot, rather he stated that person, namely Narender Kumar was present on spot and he instigated other persons to give beatings. Interestingly, son and daughter-in-law of complainant, while getting their statements recorded under Section 161 Cr.P.C., categorically stated that Narender Singh Parmar had asked the parties not to fight and at no point of time Narender Singh Parmar instigated others to beat their father.

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Having taken note of aforesaid statements made by complainant as well as other witnesses, named hereinabove, police did not name the petitioner as an accused and thereafter Court below, while framing charge, also did not find any material, worth credence, against petitioner and as such, no charge was framed against him. It is only on the basis of statement made on oath by complainant during trial, wherein he stated that person, namely Narender Kumar had instigated others to give beatings, prosecution proceeded to file application under Section 319 Cr.P.C., for arraignment of petitioner as an accused.

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Hon’ble Apex Court in Hardeep Singh (supra) has categorically held that at the time of considering an application under Section 319 Cr.P.C., Court is required to apply the same principles as are required to be applied at the time of framing of charge. Learned Court below at the time of deciding application under Section 319

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Cr.P.C., ought to have taken note of the earlier statements made by the complainant as well as other prosecution witnesses, which otherwise are part of the final report submitted under Section 173 Cr.P.C. Had the Court below bothered to look into the aforesaid statements made by the complainant as well as other prosecution witnesses, probably outcome of the application filed under Section 319 Cr.P.C. would have been in a different perspective.

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Since it is not in dispute that petitioner Narender Singh Parmar is the nephew of complainant Sadhu Ram, it cannot be said that he was not accepted of the correct name of the petitioner because in his statement recorded under Section 161 Cr.P.C., he nowhere named accused as Narender Singh Parmar, rather at that juncture, he simply alleged that person, namely Narender Singh was instigating others to give him beatings.

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Most importantly, son and daughter-in-law of complainant Sadhu Ram, while getting their statements recorded under Section 161 Cr.P.C., categorically stated that Narender Singh Parmar, who was present on the spot, attempted to stop the parties from fighting and he did not instigate others to give beatings to the complainant. Learned trial Court failed to take note of those relevant statements made by the complainant as well as other prosecution witnesses prior to framing of charge, as a result thereof, he committed grave error, while placing reliance solely upon the statement of the complainant recorded during the trial.

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At this stage, Mr. Vishal Panwar, learned Additional Advocate General, attempted to argue that at the time of deciding application under Section 319 Cr.P.C., Court concerned was not dutybound to take note of earlier statements, if any, made by the complainant as well as prosecution witnesses, rather, his statement recorded during trial, being categorical, was sufficient to arraign the petitioner as an accused. However, this Court is not persuaded to agree with the aforesaid submission of learned Additional Advocate General.

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At this stage, it would be profitable to take note of the judgment passed by Hon’ble Apex Court in Hardeep Singh (supra), wherein it has been held as under:-

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“105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

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106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “ for which such person could be tried together with the accused ”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under

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Section 319 CrPC to form any opinion as to the guilt of the accused.”

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As per aforesaid judgment, the test, which is required to be applied at the time of deciding an application under Section 319 Cr.P.C., is one which is more than a prima facie case as exercised at the time of framing of charge, but short of satisfaction, to the extent that evidence, if goes un-rebutted, would lead to conviction.

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Since in the case at hand, there is ample evidence adduced on record by the prosecution itself in the shape of statements made by Babita and Jagtar Singh, who happen to be daughter-in-law and son of the complainant, to rebut the sole testimony of the complainant, prayer made on behalf of the prosecution under Section 319 Cr.P.C. to arraign petitioner-accused ought not to have been accepted by the court below.

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Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, the present petition is allowed and impugned order dated 16.10.2023, passed by Judicial Magistrate, First Class, Court No.2, Amb, District Una, Himachal Pradesh is quashed and set-aside. Pending applications, if any, also stands disposed of.

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(Sandeep Sharma) Judge

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July 22, 2026 (shankar)

Narender Singh Parmar v. State of Hp and Others

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Narender Singh Parmar v. State of Hp and Others

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