Allowed

Sanjog @ Sanjogita and Anr. v. State of Haryana and Ors.

Punjab & Haryana HC2 Jul 2012CRR/1651/2011

Case brief

AI extract

What is this about?

The High Court allowed a revision petition challenging a lower court's order summoning petitioners as additional accused under Section 319 Cr.P.C. The judgment held that the revisional court erred in setting aside the trial court's dismissal of the application without fresh evidence or addressing contradictory medical reports, emphasizing that Section 319 requires compelling evidence, not just all

What did the court decide?

Order passed by Additional Sessions Judge dated 18.1.2011 setting aside trial court's order is set aside.

Sanjog @ Sanjogita and Anr. Vs State… — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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(1)

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Crl. Revn. No. 1651 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl. Revn. No. 1651 of 2011

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DATE OF DECISION: 2.7.2012

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Sanjog @ Sanjogita and another

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..........Petitioners

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Versus

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State of Haryana and another

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..........Respondents

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BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY

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Present:Mr. Gopal Sharma, Advocate for the petitioners.

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Mr. S.S. Nara, Sr. DAG, haryana.

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Mr. Daldeep Singh, Advocate for respondent No.2.

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DAYA CHAUDHARY, J.

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The present revision petition has been filed against order dated 9.7.2011 passed by learned Additional Sessions Judge, Rewari, vide which, the order dated 18.1.2011 passed by learned Judicial Magistrate Ist Class, Rewari has been set aside.

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In brief, the facts of the case are that a written complaint was made by Bimla Devi wife of Shri Rampat, on the basis of which FIR No. 40 dated 23.3.2008 under Sections 323,324,325,34 IPC was registered at Police Station Rampura, District Rewari against Saroj, Sanjog, Sujan Singh and Manisha. After registration of the said FIR, investigation was conducted by the police and it was found that as per allegations levelled by complainant-Bimla Devi against Sanjog she gave a kulhari blow on the left hand of Rampat, which was falsified from the opinion of Dr. Ashok Saini, General Hospital, Rewari. The allegation against Sujan Singh that he gave

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(2)

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a lathi blow on the back of Rampat was also falsified from his MLR as no such injury was found in the MLR on his back. It was also found in the inquiry that a quarrel took place between complainant-Bimla and Saroj and at the time of alleged occurrence, Sanjog, Sujan Singh and Manisha were not present and they were named because of civil litigation between them. On the basis of investigation, the police found Sanjog, Sujan Singh and Manisha innocent and challan was presented against accused-Saroj only.

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After presentation of challan, the public prosecutor filed an application under Section 190 Cr.P.C. for summoning the petitioners as an accused on the same set of allegations as stated in the FIR, which was subsequently withdrawn by Rampat by giving a separate statement. Thereafter, complainant-Bimla Devi and Rampat appeared as PW-1 and PW-2, respectively before the learned trial Court, complainant-Bimla Devi has again filed an application under Section 319 Cr.P.C. through the public prosecutor for summoning the petitioners as an additional accused on the same allegations. The learned trial Court dismissed the said application vide order dated 18.1.2011, against which revision petition has been filed by the complainant, which was allowed by Additional Sessions Judge, Rewari vide order dated 9.7.2011 and order of trial Court was set aside.

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Order dated 9.7.2011 passed by learned Additional Sessions Judge, Rewari is subject matter of challenge in the present revision petition.

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Learned counsel for the petitioners contends that the well reasoned order passed by the trial Court has been set aside by the revisional Court without having any fresh evidence before it. Learned counsel further submits that as per opinion of Ortho surgeon, the injury was not possible with sharp edged weapon and one injury has been attributed to two persons. Learned counsel also submits that there was a previous

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litigation between the parties and application under Section 319 Cr.P.C. was moved just to falsely implicate the petitioners, whereas, they were not present even at the time of alleged occurrence. The allegations levelled against the petitioners in the FIR were contrary to the medical evidence available on record and no offence was made out against the petitioners and subsequently, there was no material before the revisional Court to set aside the order passed by the trial Court. Learned counsel for the petitioners has also relied upon the judgments of Hon'ble the Apex Court in Bal Suraj @ Suraj Singh and another Vs. State of Jharkhand 2009 (1) RCR (Criminal) 504, Sarabjit Singh and Anr. Vs. State of Punjab and another 2009 (3) RCR (Criminal) 388 and Suman Vs. State of Rajasthan and another 2009 (4) RCR (Criminal) 908 in support of his contentions.

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Learned counsel for the respondent-State as well as complainant-respondent No.2 opposes the contentions raised by the learned counsel for the petitioners by stating that evidence is not required to be recorded at the time of summoning. The oral evidence of witnesses is sufficient to formulate an opnion that the accused have committed an offence. They were specifically mentioned not only in the FIR but also in the statements of PW-1 and PW-2. Even as per opinion of doctor, nowhere it was mentioned that no such injury was ever caused and the statements of PW-1 and PW-2 as well as of the doctor is matter of evidence, which can be discussed during trial. Learned counsel for respondent No.2 also relies upon the judgment of Hon'ble the Apex Court in Sarabjit Singh and another Vs. State of Punjab and another 2009 (3) RCR (Criminal) 388 in support of his contentions.

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Heard the arguments of the learned counsel for the parties and have also perused the order passed by the learned trial Court as well as revisional Court.

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(4)

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Crl. Revn. No. 1651 of 2011

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Admittedly, FIR was registered against Saroj, Sanjog, Sujan Singh and Manisha and during investigation by the police, Sanjog, Sujan Singh and Manisha were found innocent and challan was presented against accused-Saroj only. Subsequently, an application was moved under Section 319 Cr.P.C. for summoning Sanjog, Sujan Singh and Manisha as additional accused as their involvement in the case was proved from the statements of complainant-PW1 and PW-2. The said application was dismissed by the trial Court, which was further challenged by way of filing revision petition. The revisional Court set aside the order passed by the trial Court. The order passed by the revisional Court is subject matter of challenge in the present petition mainly on the ground that there was no evidence available before the revisional Court and the well reasoned order of the trial Court has been set aside without having any fresh evidence. As per opinion of the Doctor, the injuries attributed to the petitioners were found contrary to the allegations levelled in the FIR and the petitioners cannot be summoned, whereas, these facts have not been considered by the revisional Court.

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As far as provisions of Section 319 Cr.P.C. are concerned, the Court has power to summon any additional person as an accused, if it appears that those persons have also committed an offence and they can be tried along with other accused. Section 319 Cr.P.C. is reproduced as under:-

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Power to proceed against other persons appearing to be guilty of offence.--(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 had committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence

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(5)

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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 summons, 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 subsection (1) then--

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(a) the proceedings in respect of such person shall be commenced afresh, and witnesses reheard;

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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 perusal of Section 319 Cr.P.C., it is clear that the Court has jurisdiction to summon any person not being the accused to face trial along with other accused at any stage of the proceedings if the Court is satisfied on the basis of evidence that those persons have committed an offence. The names of four persons were there in the FIR and in the investigation three persons, namely, Sanjog, Sujan Singh and Manisha were found innocent by the police and challan was presented against Saroj only. Subsequently on moving an application before the trial Court, no evidence was found against them and even the injuries were not found as per allegations. A detailed order was passed by the trial Court after considering the allegations as well as the medical evidence. In the

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Crl. Revn. No. 1651 of 2011

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revision filed by the complainant, the order of trial Court was set aside simply on the ground that oral evidence of the witnesses are sufficient to formulate an opinion that all three accused have committed an offence as stated in the statement of the complainant. Nothing has been mentioned by the revisional Court as to how the order of the trial Court was contrary to the evidence or material facts available on the record or whether there was any fresh evidence for setting aside the order of the trial Court. Simply by stating that the statement of witnesses are sufficient to summon any person as an additional accused is not sufficient.

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The scope of Section 319 Cr.P.C. has been considered by the

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Hon'ble Apex Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtage and others, 1983 (1) RCR (Criminal) 73 in the backdrop of the fact held that the High Court had, in exercise of its power under Section 482 Cr.P.C. quashed the proceedings taken against the respondents. The Hon'ble Supreme Court reversed the order of the High Court and has observed as under:-

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"Although we uphold the order of the High Court we would like to state that there are ample provisions in the Code of Criminal Procedure, 1973 in which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused. In the old Code, Section 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused. The Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and Section 319 of the present Code gave full effect to the recommendation of the Law Commission by removing the lacuna which was found to exist in Section 351 of the old

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Code."

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The powers under Section 319 Cr.P.C. are not be exercised in a routine manner and it is an extraordinary power, which is conferred on the Court and is to be exercised very sparingly only if compelling circumstances exists for taking cognizance against other persons against whom action has been taken.

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In Yuvaraj Ambar Mohite v. State of Maharashtra [2006 (10) SCALE 369], it was observed by the Apex Court that there is a possibility of the accused being convicted on the basis of the evidences brought on record even if the same is taken to be correct in its entirety.

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In Guriya alias Tabassum Tauquir and Others v. State of Bihar and another [(2007) 8 SCC 224], it was held by Hon'ble the Apex Court that where there was no new material, the discretionary jurisdiction under Section 319 of the Code can be exercised, holding:

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"12. As noted above, PWs 1, 2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16-4-2001, 8-12002 and 29-4-2002. If really the complainant had any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of evidence of PWs 1, 2 and 3. That has apparently not been done. Additionally, after the charge-sheet was filed, a protest petition was filed by the complainant which was dismissed. No explanation whatsoever has been offered as to why the application in terms of Section 319 CrPC was not filed earlier. The Revisional Court did not deal with these aspects and came to an abrupt conclusion that all the PWs have stated that the appellants have committed overt acts and

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Crl. Revn. No. 1651 of 2011 (8)

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their names also find place in the protest petition. Undisputedly, no overt act has been attributed to the appellants by PWs 1, 2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was mention of their names in the FIR. A protest petition was filed. Same was also rejected. These could not have formed the basis of accepting the prayer in terms of Section 319 CrPC. The High Court's order, to say the least, is bereft of any foundation. It merely states that there are materials against the petitioners before it. It also did not deal with various aspects highlighted above."

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It is settled position of law that the Court has discretion under Section 319 Cr.P.C. which is to be exercised very sparingly and to be scrutinized with great care and caution and only if the concerned Court is satisfied that some offence has been committed by such persons then they be summoned as an additional accused to face trial. It has been so held by Hon'ble the Apex Court in Kailash Vs. State of Rajasthan and another 2008 (2) RCR (Criminal) 200, wherein, it has been held as under:-

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"A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence "..." any person "..." has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact

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that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands."

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The Hon'ble Apex Court in Lok Pal v. Nihal Singh [(2006) 10

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SCC 192] has observed as under:

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"...The court, while examining an application under Section 319 of the Code, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, for exercise of discretion under Section 319 of the Code all relevant factors, including those noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.”

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It was furthermore observed:

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"19. In these circumstances, therefore, if the prosecution can

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at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken..."

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In Mohd. Shafi v. Mohd. Rafiq & Anr. [2007 (5) SCALE 611], Hon'ble the Apex Court has held as under:-

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"7. Before, thus, a trial court seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appears to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.

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The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less

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at the instance of a witness and when the State was not aggrieved by the same."

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The decision of Hon'ble the Apex Court Court in Mohd. Shafi (supra) , however, has been explained in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhand [2008(16) SCALE 276], stating:

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"...The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction."

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In Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007

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(6) SC 460], Hon'ble Supreme Court has opined as under:

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"...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court..."

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The statements of PW-1 and PW-2 were merely reiteration of

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their earlier statements which were recorded during investigation by the police and petitioners were not found involved in the alleged occurrence. Even it was admitted in the cross-examination by PW-2 Rampat that the alleged occurrence took place in the village during day time and no independent witness was joined The previous litigation has also been admitted by PW-2. As per statement of PW-2 Rampat the injuries suffered by him on the left hand was in the month of January, 2008. On suggestion the injury on left hand was also attributed to accused-Saroj who is already facing trial. The injury attributed to petitioner No.2 has not been corroborated with medical record of Rampat. A detailed order was passed by the learned trial Court where alleged injuries attributed to the present petitioners were discussed and the allegations against the petitioners were not found correct in the investigation. Subsequently the revisional Court set aside the order without any discussion on the injuries and role of the petitioners. The order of revisional Court is totally non-speaking one and has been passed by stating that mere allegations in the statement is sufficient. In case statements of PW-1 and PW-2 are taken to be correct then petitioners cannot be convicted on this ground and moreover those have been investigated by the police. There was no evidence before the revisional Court to set aside a detailed order and a well reasoned order of the trial Court.

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In view of the facts mentioned above as well as settled position of law, the present revision petition is allowed and order passed by learned Additional Sessions Judge dated 18.1.2011 is set aside.

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(DAYA CHAUDHARY) JUDGE

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2.7.2012 pooja

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Crl. Revn. No. 1651 of 2011 (13)

Sanjog @ Sanjogita and Anr. v. State of Haryana and Ors.

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Sanjog @ Sanjogita and Anr. v. State of Haryana and Ors.

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