Dismissed

Varun Dhir @ Banka & Ors. v. State of Punjab

Punjab & Haryana HC11 Sept 2012CRM-M/10752/2011

Case brief

AI extract

What is this about?

High Court of Punjab and Haryana dismissed a criminal revision seeking to quash an order summoning petitioners as additional accused under Section 319 Cr.P.C., holding the Trial Court satisfied enough evidence existed for conviction.

What did the court decide?

The criminal revision petition stands dismissed; order of summoning additional accused under Section 319 Cr.P.C. remains valid.

Varun Dhir @ Banka & Ors. Vs State… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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Criminal Misc. No.M.10752 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Misc. No.53769 of 2012 in Criminal Misc. No.M.10752 of 2011 Date of decision 11 .9.2012.

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Varun Dhir @ Banka and others

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...... Petitioners.

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versus

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State of Punjab and others

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...... Respondents.

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CORAM :- HON'BLE MR.JUSTICE K.C.PURI.

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Present :- Mr. K.S.Dadwal, Advocate for the petitioners. Mr. Vishal Sharma, AAG, Punjab Mr. Anil Kshetarpal, Advocate for the complainant.

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K.C.PURI, J.

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Criminal Misc. No.53769 of 2012

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Criminal Misc. stands allowed. Written reply is taken on

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record.

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Main case.

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Challenge in this petition under Section 482 of the Code of Criminal Procedure (in short – the Cr.P.C.) is order dated 17.1.2011 passed by Shri Harsh Mehta, Additional Sessions Judge (Adhoc) Fast Track Court, Gurdaspur vide which the application under Section 319 of the Code of Criminal Procedure ( in short – the Cr.P.C.) (Annexure P-6) was allowed and the present petitioners along with others were ordered to be summoned

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as accused to face trial under Sections 307, 148, 149 and 120-B, of the Indian Penal Code (in short – the IPC) in FIR No.54 dated 21.4.2010 registered at Police Station City Batala District Gurdaspur. 2. Briefly stated that Chit No.489 was received from Civil Hospital, Batala in which it is mentioned that Vimal Sekhri and Vasu Sekhri have been admitted in Civil Hospital, Batala in injured condition. The police sought the opinion regarding their condition and they were unfit to make the statement and ultimately the statement of Vimal Sekhri was recorded, who had stated that he was running a Jewellery shop in Qilla Mandi Batala. He has two sons, out of them elder son is Varun Sekhri, who is running a Shoe shop at Mukerian. His younger son Vasu Sekhri is residing with him and is working as Gold Smith along with him in his shop. On 18.4.2010 at about 10.00p.m., he along with his son Vasu, after taking dinner were sitting in their house and the main gate of their house was opened. In the meantime, Gautam @ Guddu called him by name and stated that Chacha Ji come out and the quarrel which was taken place between Vasu and Rahul Sharma be compromised. The complainant told him that he be followed. After sometime complainant along with his son Vasu followed Gautam Seth. When they reached near Flour Mill of Pardeep, the street lights were on and he saw that Tarun Sharma @ Tannu son of Satish Sharma was armed with Kirch, Ammu son of Jolly Sharma was armed with Base Ball Bat, Rahul son of Satish Sharma was armed with Datar, Lucky sons of Shashi Seth was armed with datar, Banka Dhir son of Rakesh Dhir was armed with Base Ball Bat. Gautam @ Guddu and Sumit armed with

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Panch were standing in front of the Flour Mill in connivance with each other. When the complainant and his son Vasu came near the floor mill then Gautam @ Guddu and Banka Dhir stated in one voice that their prey have come and they be taught a lesson for not compromising the matter. Ammu stated to Rahul that today they have to take revenge of their insult and in the meantime Sumit caught hold Vasu from his neck. Rahul Sharma gave a blow of datar to Vasu, which hit on the backside of his head and Vasu fell on the ground. The complainant shouted in a loud voice that these persons have killed his son and he be saved. Then Lucky told that why you are weeping, they also sent him along with his son. Then Lucky gave datar blow to the complainant with an intention to kill him which hit on the left side of his leg. In the meantime, Avinash Sekhri son of Anil Sekhri and Sanjiv Kumar son of Des Raj resident of Pandhian Mohalla, Batala came at the spot and the aforesaid persons while giving kick blow to them and ran away while raising lalkara along with their respective weapons.

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During investigation, investigating officer reached to the conclusion that Rahul Sharma and his brother Tarun Sharma are the accused whereas other accused namely Gautam Seth, Ammu, Lucky Seth, Banka Dhir and Sumit have not been found at fault.

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Rahul Sharma and Tarun Sharma were facing trial for offence under Sections 307 of the IPC. The prosecution after examining Vimal Sekhri and Varun Sekhri moved an application for summoning the present petitioners along with the remaining accused under Section 319 of the Cr.P.C.

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Criminal Misc. No.M.10752 of 2011

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Learned trial Court vide impugned order dated 17.1.2011 summoned the petitioners along with Tarun Sharma, Lucky Seth, Gautam alias Guddu to stand trial in the said FIR. The said order has been challenged by the present petitioners.

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Learned counsel for the petitioners has submitted that provisions of Section 319 of the Cr.P.C. are extraordinary in nature and the Court could summon a person as an accused when there are chances of conviction. It is submitted that the learned trial Court has not recorded finding that there are chances of conviction. So, in these circumstances, the impugned order cannot be sustainable in the eyes of law.

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Learned counsel for the petitioners has further submitted that the complainant and other injured witness have given the verbatim statements as made under Section 161 of the Cr.P.C., the investigating agency after going through the statements recorded under Section 161 of the Cr.P.C. and other evidence came to the conclusion that petitioners along with other persons sought to be accused were not present at the spot but have reached at the spot later on i.e. after the occurrence. So, they cannot be summoned under Section 319 of the Cr.P.C.

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To fortify his aforesaid arguments, learned counsel for the petitioners has relied upon the following authorities :-

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1. Sarabjit Singh & Anr. Versus State of Punjab & Anr. 2009 (3) RCR (Criminal ) page 388 ;

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2. Gurmeet Kaur Versus State of Punjab & Anr. 2010 (1) RCR (Criminal ) page195 ;

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3. Lal Suraj @ Suraj Singh & Anr. vs. State of Jharkhand 2009(1) RCR (Criminal ) page 504 ;

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4. Dayanand Singh Versus State of Haryana & Anr. 2012 (3) RCR (Criminal ) page 105 ; and

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5. Brindaban Dass and others. Versus State of West Bengal 2009 (1) RCR (Criminal ) page 672 ;

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Learned counsel for the respondent-complainant has supported the order of the trial Court. It is submitted that two injured witnesses have categorically stated the presence of the petitioners at the spot and their active participation. So, in these circumstances, the trial Court has rightly accepted the application of the prosecution.

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In order to properly appreciate the facts of the case, Section 319 of the Code of Criminal Procedure, 1973 is reproduced as under :-

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“319. Power to proceed against other persons appearing to be guilty of offence.

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(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.

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(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.

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(3) Any person attending the court although not under arrest or upon a summon, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

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(4) Where the court proceeds against any person under sub-section (1) then-

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(a) The proceedings in respect of such person shall be

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commenced afresh, and witnesses re-heard.

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(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.”

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From the bare reading of such section, it is clear that if in the course of inquiry or trial, it appears “from the evidence that any person has committed any offence for which such person can be tried together with the accused, the Court may proceed against such person for the offence for which he appears to have committed.”

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No doubt, summoning of a person as an accused is a serious matter and the Court should not resort to summon a person under Section 319 Cr.P.C., in a routine manner. However, if from the evidence a case is made out for trial of the person as an accused, in that case, the said person can be summoned as an accused. In the present case, the first version came in the form of statement of Vimal Sekhri. In the testimony of Vimal Sekhri and Varun Sekhri in the Court, it is categorically mentioned that Tarun Sharma alias Tannu son of Satish Sharma was armed with kirch, Ammu son of Jolly Sharma was armed with Base Ball bat, Rahul son of Satish Sharma was armed with Datar, Lucky son of Shashi Seth was armed with datar, Banka Dhir son of Late Rakesh Dhir was armed with Base Ball bat. Gautama alias Guddu and Sumit applicants were armed with panch. They have further stated that Gautam @ Guddu and Banka Dhir stated in one voice that their prey have come and they be taught a lesson for not compromising the matter. Ammu applicant stated to Rahul that today they

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have to take revenge of their insult and in the meantime Sumit applicant caught hold Vasu from his neck, Rahul Sharma gave a blow of datar to Vasu, which hit on the backside of his head and Vasu fell on the ground. The complainant shouted a noise. Then Lucky gave datar blow to the complainant with an intention to kill him, which hit on the left side of his leg. So, from the bare reading of the statement, it is revealed that present petitioners along with other accused were summoned to stand trial for taken active part in the occurrence and that they were armed with weapon at that time.

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In authority Suman versus State of Rajasthan and another reported in (2010) 1 Supreme Court Cases page 250 , Hon'ble Apex Court has held as under : -

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“A reading of the plain language of Section 319(1) CrPC makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of Section 319 (1) CrPC from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the policemen cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offence for which he could be tried together with the other accused.”

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It has been further held in the said authority, which reads as under :-

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“The process issued against the appellant under Section 319

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CrPC cannot be quashed only on the ground that even though she was named in the complaint, the police did not file chargesheet against her. A person who is named in the FIR or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 CrPC if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused.”

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The trial Court has recorded a finding that case is made out

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from the evidence on the file to summon the present accused along with other co-accused. So, it cannot be said that there were no prospect of conviction of the petitioners in the FIR in question.

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The evidence produced in the present case is sufficient to make out a case for summoning the petitioners and other persons as an accused in view of the part attributed to them as discussed above.

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So far as authority Sarabjit Singh & Anr's case (supra) is concerned in that case it has been held that criteria laid down by this Court in M.C. of Delhi should be adopted before summoning the accused. The ratio of the said judgment is that additional accused can be summoned for standing the trial, in case the nature of the evidence is such which makes out a case for exercising of extraordinary power to summon them as an accused. In the present case, there is sufficient and cogent reason to summon the petitioners as an accused along with others.

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In authority Gurmeet Kaur's case (supra) this Court has held that Court will summon a person as an accused if Court is satisfied on the basis of material on record that it would reasonably reached to the conclusion of the person sought to be summoned. Though the trial Court has not specifically recorded the said finding but has recorded a finding that the material an file is sufficient to make out a case for summoning the present petitioner as an accused. It is not the wording alone which is material but the intention which is conveyed by the order has to be taken into account.

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Similar view was taken in authority Dayanand Singh's case

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(supra).

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In authority Lal Suraj @ Suraj Singh & Anr.'s case (supra) it

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has been held that Court should satisfy that there was possibility of the conviction of the petitioners. In the case in hand, the trial Court satisfied that there is sufficient evidence against the present petitioners.

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21. In authority Brindaban Dass and others' case (supra),

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Hon'ble the Apex Court has held that a person can be summoned as an additional accused if additional evidence comes before it, that there were chances of conviction on the basis of fresh material. So, it cannot be said that that evidence is insufficient to make out a case of conviction of the present petitioners.

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From the facts and circumstances of the case it can be safely inferred that the trial Court has exercised its jurisdiction for summoning of the present petitioner along with other as additional accused on the basis of

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evidence. I see no illegality or wrong committed by the trial Court in this regard.

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