Naresh Kumar @ Naresh Pehalwan vs State Of Haryana
2021 Latest Caselaw 2974 P&H

CRR No. 838 of 2019 (O&M)
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           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH


(201)                            CRR No. 838 of 2019 (O&M)
                                 Date of Decision : October 13th , 2021


Naresh Kumar @ Naresh Pehalwan
                                                                  ...Petitioner

                                 Versus

State of Haryana
                                                                 ...Respondent


                   (through video conferencing)


CORAM:       HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI


Present:     Mr. Sanjay Vashisth, Advocate for the petitioner.

             Mr. Gaurav Bansal, Assistant Advocate General, Haryana.

             ***

Harsimran Singh Sethi J.

The present revision petition has been filed challenging the

order dated 02.03.2019 passed by learned Sessions Judge, Jind, whereby,

the petitioner has been summoned to face trial by allowing the application

under Section 319 of the Criminal Procedure Code (hereinafter referred to

as 'Cr.P.C.') filed by the prosecution in FIR No. 285 dated 07.08.2016,

under Section 306 read with Section 34 IPC, registered at Police Station

Sadar Jind, District Jind. Before adverting to the grounds of challenge,

certain facts need to be enumerated here.

Complainant, Deepak son of Sita Ram made a complaint to the

police, on the basis of which, FIR No. 285 dated 07.08.2016 was registered.

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As per the allegations in the FIR, Sita Ram, father of complainant,

committed suicide on 07.08.2016 and the reasons stated for the said act

committed by the deceased was that one Rakesh, who is the son-in-law of

the deceased, his elder brother Kawaljeet and the petitioner, Naresh Kumar

@ Naresh Pehalwan were not returning the amount, which they took from

the said Sita Ram citing financial difficulty having suffered losses in their

business and made the deceased Sita Ram sell his land to arrange the

amount so as to bail them out from the financial difficulty, despite the fact

that the assurance was given by them to the deceased that the amount so

given, will be returned along with interest. FIR records that a sum of Rs.

44 lacs was handed over by the deceased to Rakesh in the presence of the

petitioner and Kawaljeet but thereafter, the said persons did not return the

amount taken from deceased Sita Ram on one pretext or the other. Further

allegation in the FIR is that even a Panchayat meeting was called on the

asking of the deceased Sita Ram to solve the said issue but Rakesh,

Kawaljeet and the petitioner, Naresh Kumar @ Naresh Pehalwan not only

refused to attend the said meeting but also threatened the deceased Sita

Ram by declaring that they are not going to return the amount whatever may

come.

As per the FIR, Sita Ram committed suicide being perturbed

due to non-return of the amount by the above said persons on 07.08.2016

and a suicide note was also recovered, wherein, all three persons i.e.

Rakesh, Kawaljeet as well as petitioner, Naresh Kumar @ Naresh Kumar @

Naresh Pehalwan were named as the cause, which led Sita Ram to take his

life. During the investigation, the suicide note recovered was got

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forensically examined, wherein, the signatures of the deceased matched with

that on the suicide note. As per the FSL report, common poison was not

detected as the cause of death.

After the investigation, Rakesh as well as Kawaljeet i.e. both

the brothers were found prima-facie guilty of the offence in the challan

submitted by investigating agency and the petitioner, Naresh Kumar @

Naresh Pehalwan was found innocent. It may be noticed here that a factual

aspect has already come on record that petitioner, Naresh Kumar @ Naresh

Pehalwan, who is a police official, was sought to be proceeded against when

investigation of the FIR was with the Crime Branch but after the said

investigation was transferred back to the District Police, no challan was

submitted against him holding him to be innocent.

During the trial, the prosecution examined complainant,

Deepak, who reiterated the allegations against accused Rakesh and

Kawaljeet as well as against the petitioner to the effect that they abetted the

suicide committed by his father, Sita Ram as well as the allegation that

petitioner along with other two accused had taken Rs. 44 lakhs from the

deceased, which was not being returned by them, which fact led the

deceased to take his own life. Thereafter, prosecution moved an application

under Section 319 Cr.P.C. for summoning the petitioner as an additional

accused to face trial along with Rakesh and Kawaljeet.

As per the prosecution, there was enough evidence against the

petitioner so as to summon him to be tried for the offence along with other

accused. The said application was contested. Vide order dated 02.03.2019,

learned Sessions Judge, Jind allowed the said application filed by the

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prosecution under Section 319 Cr.P.C. by holding that there is enough

evidence on record to try the petitioner along with the other co-accused for

the offence alleged in the FIR. The said order dated 02.03.2019 is under

challenge in the present revision petition.

Learned counsel for the petitioner has argued that in the present

case, the investigating agency conducted due investigation into the

allegations and found the petitioner innocent and a similar statement of the

complainant, as recorded while testifying before the trial Court, which

allegations were also part of the FIR, was taken into consideration by the

investigating agency and thereafter, the investigating agency came to a

conclusion that petitioner is innocent of the allegations being alleged hence,

mere statement of the complainant, which reiterated the same allegations in

the FIR, cannot be made basis for summoning the petitioner to be tried as an

accused by allowing the application filed by the prosecution under Section

319 Cr.P.C. Learned counsel for the petitioner further argued that the only

other fact, which weighed with the trial Court for allowing the application

under Section 319 Cr.P.C. filed by the prosecution to summon the petitioner

as an additional accused to be tried for the offence, is that when the

investigation was with the Crime Branch, the petitioner was sought to be

proceeded against for the commission of the crime, though later on, when

the investigation was transferred to the District Police, petitioner was found

innocent, which fact cannot be a valid ground for the trial Court to come to

the conclusion that there is, prima-facie, evidence against the petitioner so

as to face the trial.

Learned counsel further argued that the parameters laid down

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by the Hon'ble Supreme Court in Hardeep Singh Vs. State of Punjab and

others, 2014 (3) SCC 92 as well as in Civil Appeal No. 763 of 2017 titled as

Brijendra Singh and others Vs. State of Rajasthan, decided on

27.04.2017, are not met in the present case so as to allow the application

filed by the prosecution under Section 319 Cr.P.C. to summon the

petitioner as an additional accused to face the trial and, therefore, the

impugned order dated 02.03.2019 passed by learned Sessions Judge, Jind is

erroneous not only on the factual aspect but on law as well.

While opposing the prayer of the petitioner, learned State

counsel argued that the trial Court has considered all the aspects including

the report submitted by the Police under Section 173 Cr.P.C., the allegations

alleged in the FIR as well as the evidence, which has already come on

record during the investigation as well as trial to form an opinion that there

is a prima-facie evidence, which is enough to summon the petitioner to face

trial. Learned State counsel submitted that by allowing the application

under Section 319 Cr.P.C. filed by the prosecution, the Court is not

pronouncing the petitioner guilty or innocent but petitioner has only been

directed to be added as an additional accused to face trial, after being

satisfied that there was a prima-facie evidence on record for summoning the

petitioner to be tried as an additional accused in the present FIR, hence, the

order impugned in the present revision petition dated 02.03.2019 is

perfectly valid on facts as well as on law and is liable to be sustained.

Learned counsel for the respondent-State further submitted that nothing has

been pointed out that as to why the complainant will involve his own

brother-in-law i.e. husband of his real sister or his elder brother and the

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petitioner in a false case or why, the deceased will name these three persons

to be responsible for his death in his suicide note.

I have heard learned counsel for the parties and have gone

through the record with their able assistance.

Certain aspects which needs to be noticed herein are that the

complainant is the real brother-in-law of accused Rakesh, who is the

husband of his elder sister and Kawaljeet is the elder brother of accused

Rakesh and the petitioner is a friend of the above said accused and is

employed with the Haryana Police. The factum that the money was paid by

deceased Sita Ram to three accused has come on record more than once.

The said aspect is duly mentioned in the FIR. In the FIR, it has been

mentioned that the petitioner was accompanying the other accused Rakesh

and Kawaljeet when they asked for money from deceased Sita Ram and it

has also come on record that petitioner was present when the said money

was handed over to the accused persons. Payment of money by the

deceased to the accused has also come on record during the investigation as

well as in the challan submitted by the police under Section 173 Cr.P.C.

Even during the testimony being recorded in the trial, the said fact has

come in the testimony of the complainant.

Not only this, another factor, which is very important to

highlight is that the petitioner has been duly named by the deceased himself

in the suicide note as being a cause, which led the deceased to take his own

life. The signatures on the suicide note are admittedly of deceased Sita

Ram. That being so, the factual aspect is that there was some money dispute

between deceased Sita Ram and the accused persons including petitioner,

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which according to suicide note, led the deceased to take his own life.

The argument of learned counsel for the petitioner that once the

petitioner was found innocent in the investigation, after considering the

complaint filed by the complainant, which is on the same lines as the

testimony of the said complainant before the trial Court, the report of the

investigating agency should not be overruled, cannot be accepted for the

reason that it would imply that wherever the investigating agency has

exonerated the person during investigation and the challan has not been

presented against the said accused, he/she cannot be summoned under

Section 319 Cr.P.C. under any circumstances. This is not envisaged by the

provisions of Section 319 Cr.P.C. According to Section 319 Cr.P.C., after

appreciating the factual aspect as well as the evidence, which had come on

record during investigation as well as trial, Court has to conclude that there

is enough material on record, which prima-facie makes out a case against a

person to be summoned as an additional accused to face the trial.

Therefore, the importance being given to the report submitted by the

investigating agency under Section 173 Cr.P.C. by the learned counsel for

the petitioner and that too by ignoring other relevant facts, cannot come to

the rescue of the petitioner so as to challenge the present order.

Learned counsel for the petitioner was requested to point out

from the report submitted by the investigating agency in the present case

wherein the petitioner has been declared innocent, as to how the suicide

note has been dealt with therein, especially, when the signatures of the

deceased on the said suicide note have been proved by the FSL report and

the said suicide note duly named the petitioner as one of the person due to

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whom the deceased took his own life but nothing could be pointed out by

the learned counsel for the petitioner except that as per challan no money

was transferred to any of the accounts of the petitioner. Mere non-deposit

of the money taken from the deceased Sita Ram in the account of the

petitioner, cannot be taken as an important factor to declare the petitioner

innocent by ignoring the other relevant factors such as suicide note which

specifically named the petitioner. Finding given by the investigating agency

in the challan submitted is to be seen in the light of the fact that petitioner is

a police official and also that Crime Branch of the Haryana Police sought

permission to prosecute the petitioner at one given point of time though,

later on the investigation was transferred to the District Police, which

agency exonerated the petitioner. Under these circumstances, the report

given by the investigating agency under Section 173 Cr.P.C., cannot be

taken as gospel truth to accept the plea of the petitioner that he is to be

treated as innocent by ignoring the other factual aspects including the

suicide note and other evidence, which has come on record.

Learned counsel for the petitioner places reliance upon the

following judgments so as to contend that the challan submitted by the

police carries a significance and also the fact that the statement given by the

complainant reiterating the allegations, which were part of the FIR, cannot

made a ground to summon an accused to face trial while allowing the

application of the prosecution under Section 319 Cr.P.C. :-

Labhuji Amratji Thakor and others Vs. State of Gujarat and

another, 2019(1) RCR (Criminal) 1, Sunil Kumar Gupta and others Vs.

State of Uttar Pradesh and another, Criminal Appeal No. 395 of 2019,

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decided on 27.02.2019 and Periyasami and others Vs. S. Nallasamy,

Criminal Appeal No. 456 of 2019, decided on 14.03.2019.

The point of law enumerated by the Hon'ble Supreme Court of

India in the judgments, which have been cited by the learned counsel for the

petitioner, is that though the Court has power to summon a person as an

additional accused to face trial but the same should be done with judicious

mind after analyzing all the factors to form an opinion that there exists

prima-facie evidence to summon the said person. The guidelines, which

have been given by the Hon'ble Supreme Court is that unless and until the

allegations alleged against a person are corroborated by evidence on record

to convince the Court that there exists a prima-facie case against the person

so as to face the trial, the application filed by the prosecution should not be

allowed. Further the Hon'ble Supreme Court of India has held that if

material/enough evidence has come on record to cause a prima-facie doubt

on the challan, then the findings by the investigating agency, can be

overruled so as to summon an accused to face the trial.

There is no straight jacket formula presented either to accept

the challan in toto or to ignore it. Every case has to be dealt on its own

merit keeping in view the facts and evidence on record before the trial

Court. In the present case, the trial Court has prima-facie found that the

evidence exists against the petitioner to summon him to face the trial as an

additional accused and the reasons have also been given though, the same

might not be in detail. The facts, which have been detailed hereinbefore, go

to show that there is enough evidence on record to form an opinion that

there exists a prima-facie case to summon the petitioner to face the trial.

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The judgments, which have been cited by learned counsel for

the petitioner, were taken into consideration by the Hon'ble Supreme Court

of India in Criminal Appeal No. 368 of 2018 titled as Virendra Singh Vs.

The State of Madhya Pradesh and another, decided on 04.02.2019,

wherein it is held that where the statements of the prosecution witnesses

implicate an accused so as to shake the alibi, the same is to be treated as a

prima-facie evidence on record to form an opinion to summon an accused to

face the trial under Section 319 Cr.P.C. The relevant portion of the said

judgment is as under :-

"4. We have perused the statements of P.W. Nos. 3, 4 &

5. Each one of these witnesses has specifically implicated Manoj Singh stating that he fired shots at the deceased. In addition, PW-4 has specifically stated that one could reach Gwalior if one passed from Dong within a period of 10-15 minutes. The same thing is stated by PW-5-Dilip Singh. This would shake Manoj's alibi that he was not at the place where the incident took place because it is clear that he was at the other place half an hour before the said incident.

5. We have also perused the judgment of this Court in Brijendra Singh and Others v. State of Rajasthan, (2017) 7 SCC 706 (para 13) and the Constitution Bench judgment of this Court in Hardeep Singh v. State of Punjab & Others, (2014) 3 SCC 92 (para 106) and are satisfied that this is a case which falls clearly within the parameters laid down in the said judgments."

In the present case, even learned counsel for the petitioner

could not point out as to how the investigating agency has dealt with the

suicide note which clearly names the petitioner as an abettor and in the FSL

report the said suicide note has been found to be signed by the deceased, so

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as to declare the petitioner innocent. Further more, the factum that the

petitioner is a police official, is also a significant factor to be noticed while

placing reliance upon the report submitted by the investigating agency

under Section 173 Cr.P.C., especially, when the Crime Branch of the

Haryana Police sought sanction to prosecute the petitioner for the

allegations alleged in this FIR. Parameters laid down in Hardeep Singh's

case (supra), Brijendra Singh and others' case (supra) by the Hon'ble

Supreme Court of India, in the opinion of this Court, are fulfilled so as to

summon the petitioner as an additional accused to face trial.

Keeping in view the above, as there is more than prima-facie

evidence already on record to form an opinion that the petitioner needs to be

summoned as an additional accused to face trial, therefore, no interference

is called for in the impugned order dated 02.03.2019 by this Court.

Dismissed.

October 13th , 2021                     (HARSIMRAN SINGH SETHI)
kanchan                                          JUDGE


             Whether speaking/reasoned : Yes/No
             Whether reportable             : Yes/No




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