Punjab-Haryana High Court
Kulwinder Kaur & Ors vs State Of Punjab & Anr on 19 December, 2022
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-49364-2022 in/and
CRM-M-14907-2016
Date of decision : 19.12.2022
Kulwinder Kaur and others
....Petitioners
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. S.P. Soi, Advocate and
Mr. Sahil Soi, Advocate
for the petitioners.
Mr. Jaiteshwar S. Bhandari, Asstt. Advocate General, Punjab
for respondent No.1-State.
Mr. Ramesh Sharma, Advocate
for respondent No.2.
PANKAJ JAIN, J. (ORAL)
CRM-49364-2022
This is an application for placing on record copy of the Challan
marked as Annexure P-3.
For the reasons recorded in the application, the same is
allowed. Document marked as Annexure P-3 is taken on record subject to
all just exceptions.
CRM-M-14907-2016
Present petition has been filed under Section 482 Cr.P.C.
impugning the order dated 9th of November, 2015 passed by SDJM,
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Nakodar whereby the petitioners have been ordered to be summoned by
resorting to provisions contained in Section 319 Cr.P.C.
2. In the present case, FIR was registered at the behest of Santokh
Nath, who alleged that :-
"...On dated 29-5-2013 ASI Gurmeet Singh alongwith HC
Harnek Singh 641 and HC Harnek Singh 641, C. Surjit Singh
1280 reached civil hospital Nakodar where doctor told that the
injured is now fit to make statement and ASI Gurmit Singh had
recorded the statement of injured. Santokh Nath stated that I
went to sleep with my family after having dinner, then ouside our
house Bakhshish @ Shishu son of Amarjeet abusing us loudly
outside our house, at that time it would be around 11:30 at night,
so I opened the gate and told Bakhsish @ Sishu that you should
not abuse and go back to your house but he did not stop and
within minutes Bakhsish @ Shishu alongwith iron rod his father
Amarjit son of Hazara carrying brick, Happy, Lala son of Amarjit
and Kulwinder Kaur wife of Amarjit, Surjit wife of Bhola, Sabi
d/o Bhola, Bhola son of Hazara, babbu son of Hazara resident of
Rasulpur Kalan raising Lalkaras and came towards our house. I
got scared and entered my house. All the aforesaid persons
entered our house and Bakhsish @ Shishu inflicted blow of iron
rod on face upon lips and Amarjit hit brick below my nose on the
left side. I fell down unconscious. My wife kanica came
forward to rescue me then Kulwinder Kaur wife of Amarjit,
Surjit wife of Bhola, Sabi daughter of Bhola dragged my wife
Kanica to the house of Bakhshish Lal and lock the house from
inside and they locked by wife inside their house and we all
family members shouted loudly. A lot of people gathered there
and Soni son of Piara, Kartar son of Mehenga Ram, Sabi son of
Dara rescued my wife Kanica from Bakhsish Lal's house. The
aforesaid accused threatened to kill us. My father Gurmej Singh
an my mother Shindo saw this whole incident. Later my brother
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Tarlok Nath arranged a vehicle and got admitted me in the Civil
Hospital Nakodar where I am under treatment, the aforesaid
accused has broken our doors by smashing bricks. Statement has
been got recorded, action should be taken."
3. During the investigation, the present petitioners were placed in
Column No.2 and were not challaned. Only Amarjit and Bakhsish @
Shishu who were alleged to have inflicted injuries upon the person of
complainant Santokh Nath were challaned. During the course of trial
Santokh Nath appeared as PW-1 and reiterated the allegations levelled in
the FIR. The present application under Section 319 Cr.P.C. was moved by
the prosecution which stands allowed vide impugned order by the Trial
Court holding as under :-
"4. The perusal of record shows that present FIR in question was
registered against the two accused present in the court namely
Bakhshish, Amarjit alongwith Happy, Lalla, Kulwinder Kaur,
Surjit, Sabhi, Bholla and Babbu (who are now sought to be
summoned vide this application) on the basis of statement of
complainant Santokh Nath wherein he had categorically narrated
the role of said Happy, Lalla, Kulwinder Kaur, Surjit, Sabhi,
Bholla and Babbu alongwith other accused in the alleged
incident. But the challan in question was presented in the court
only against accused Amarjit and Bakhshish Lal who are facing
the trial at this stage and said Happy, Lalla, Kulwinder Kaur,
Surjit, Sabhi, Bholla and Babbu were kept in Column No.2 in
said challan on the basis of some enquiry by DSP Nakodar. Now
during the course of prosecution evidence, complainant Santokh
Nath stepped into the witness box as PW1 and reiterated his
version regarding incident in question and also categorically
named Happy, Lalla, Kulwinder Kaur, Surjit, Sabhi, Bholla and
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Babbu as accused and has attributed a specific role to them that
they alongwith other accused persons forcibly entered in his
house and they dragged him in the house of Bakhshish Lal. In
view of the aforesaid material on record, I am of the view that
sufficient ground is made out for proceeding against said persons
under Section 319 Cr.P.C. and there is earlier probability that
they may be eventually convicted in the present case, if
prosecution evidence is satisfactorily led against them.
Accordingly, present application is hereby admitted and said
Happy, Lalla, Kulwinder Kaur, Surjit, Sabhi, Bholla and Babbu
are ordered to be summoned as accused in this case to face trial
for commission of offences falling under Section 452, 323, 325,
342, 427, 506, 34 of Indian Penal Code for 19.02.2016.
4. Ld. Counsel representing the petitioners submits that the Ld.
Trial Court has completely misdirected itself and the test as prescribed by
the dicta of law laid down in Hardeep Singh vs. State of Punjab, 2014(1)
R.C.R. (Criminal) 623 has been completely bye-passed. He submits that
apart from mere repetition of allegations against the petitioners there is no
cogent evidence on record on the basis of which satisfaction as required by
the Apex Court in Hardeep Singh's case (supra) can be recorded to the
effect that there is 'more than a prima facie case' against the petitioners. In
support of his contention, he relies upon the judgments passed by this Court
in the case of Laxmi vs. State of Haryana and another, 2018(1) R.C.R.
(Criminal) 987 and in Surjit Singh and another vs. State of Punjab and
another - CRM-M-22347 of 2016.
5. Per contra, Counsels for the respondents submit that all the
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petitioners have been specifically named in the FIR and all of them
constituted unlawful assembly thereby making them guilty of offence
punishable under Sections 148, 149 IPC the least.
6. Ld. Counsel for the complainant submits that the prosecution
agency exonerated the petitioners by stating that all the persons constituting
unlawful assembly cannot be held guilty and while doing so, the
prosecution agency has travelled beyond its jurisdiction.
7. I have heard counsel for the parties and have gone through the
records of the case.
8. A bare perusal of the contents of the FIR would reveal that
there are specific allegations against Kulwinder Kaur, Sabhi and Surjit i.e.
petitioners No.1, 5 and 7. Admittedly, Kanica, who is one of the victims
has been associated with the investigation and she has reiterated the
allegations levelled in the FIR. It is trite law that testimony of an injured
witness is on a higher pedestal as his presence on the scene of occurrence
cannot be doubted. Reference can be made to law laid down by Apex Court
in Sartaj Singh vs. State of Haryana and another, 2021(5) SCC 337.
Apex Court while considering the similar plea w.r.t. repetition of the
allegations levelled in the FIR held as under :-
"6.2 Considering the law laid down by this Court in Hardeep
Singh (supra) and the observations and findings referred to and
reproduced hereinabove, it emerges that (i) the Court can
exercise the power under section 319 CrPC, 1973 even on the
basis of the statement made in the examination-in-chief of the
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witness concerned and the Court need not wait till the
crossexamination of such a witness and the Court need not wait
for the evidence against the accused proposed to be summoned to
be tested by crossexamination; and (ii) a person not named in the
FIR or a person though named in the FIR but has not been
charge-sheeted or a person who has been discharged can be
summoned under section 319 CrPC, 1973 provided from the
evidence (may be on the basis of the evidence collected in the
form of statement made in the examination-in-chief of the
witness concerned), it appears that such person can be tried
along with the accused already facing trial.
6.3 In S. Mohammed Ispahani v. Yogendra Chandak (2017) 16
SCC 226, this Court has observed and held as under: (SCC p.
243)
"35. It needs to be highlighted that when a person is named in
the FIR by the complainant, but police, after investigation, finds
no role of that particular person and files the charge-sheet
without implicating him, the Court is not powerless, and at the
stage of summoning, if the trial court finds that a particular
person should be summoned as accused, even though not named
in the charge-sheet, it can do so. At that stage, chance is given to
the complainant also to file a protest petition urging upon the
trial court to summon other persons as well who were named in
the FIR but not implicated in the charge-sheet. Once that stage
has gone, the Court is still not powerless by virtue of section 319
CrPC, 1973. However, this section gets triggered when during
the trial some evidence surfaces against the proposed accused.
6.4 In the case of Rajesh v. State of Haryana (2019) 6 SCC
368, after considering the observations made by this Court in
Hardeep Singh (supra) referred to hereinabove, this Court has
further observed and held that even in a case where the stage of
giving opportunity to the complainant to file a protest petition
urging upon the trial court to summon other persons as well who
were named in FIR but not implicated in the chargesheet has
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gone, in that case also, the Court is still not powerless by virtue
of section 319 CrPC, 1973 and even those persons named in FIR
but not implicated in chargesheet can be summoned to face the
trial provided during the trial some evidence surfaces against the
proposed accused.
7. Applying the law laid down by this Court in the aforesaid
decisions to the case of the accused on hand, we are of the
opinion that learned Trial Court was justified in summoning the
private respondents herein to face the trial as accused on the
basis of the deposition of the appellant - injured eye witness. As
held by this Court in the aforesaid decisions, the accused can be
summoned on the basis of even examination-in-chief of the
witness and the Court need not wait till his cross-examination. If
on the basis of the examination-inchief of the witness the Court
is satisfied that there is a prima facie case against the proposed
accused, the Court may in exercise of powers under section 319
CrPC, 1973 array such a person as accused and summon him to
face the trial. At this stage, it is required to be noted that right
from the beginning the appellant herein - injured eye witness,
who was the first informant, disclosed the names of private
respondents herein and specifically named them in the FIR. But
on the basis of some enquiry by the DSP they were not charge-
sheeted. What will be the evidentiary value of the enquiry report
submitted by the DSP is another question. It is not that the
investigating officer did not find the case against the private
respondents herein and therefore they were not chargesheeted. In
any case, in the examination-in-chief of the appellant-injured eye
witness, the names of the private respondents herein are
disclosed. It might be that whatever is stated in the examination-
in-chief is the same which was stated in the FIR. The same is
bound to be there and ultimately the appellant herein - injured
eye witness is the first informant and he is bound to again state
what was stated in the FIR, otherwise he would be accused of
contradictions in the FIR and the statement before the Court.
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Therefore, as such, the learned Trial Court was justified in
directing to issue summons against the private respondents
herein to face the trial.
8. Now, so far as the impugned judgment and order passed
by the High Court is concerned, it appears that while quashing
and setting aside the order passed by the learned Trial Court, the
High Court has considered/observed as under:
"No evidence except the statement of Sartaj Singh, which
has already been investigated into by the concerned DSPs was
relied upon by the trial Court to summon, which was not
sufficient for exercising power under Section 319 Cr.P.C., 1973.
As per statement of Sartaj Singh, Palwinder Singh and
Satkar Singh gave him lathi blows on the head. Manjeet Singh,
Amarjeet Singh, Rajwant Singh, Narvair Singh and Sukhdev
Singh were holding gandasi. Manjeet Singh, Amarjeet Singha
and Rajwant Singh gave him gandasi blows on the head and
face. All the injuries are stated to fall in the offence under
Sections 323, 324, 326, 341 read with Section 149 IPC. In case,
so many people as mentioned above were giving gandasi and
lathies blows on the head, Sartaj Singh was bound to have
suffered more injuries, which would not have left him alive and
probably he would have been killed on the spot. He seems to
have escaped with only such injuries as have invited offence only
under Sections 323, 324, 326, 341 read with Section 149 of IPC.
Therefore, the trial Court erred in exercising his jurisdiction
summoning the other accused where exaggeration and
implication is evident on both sides."
8.1 The aforesaid reasons assigned by the High Court are
unsustainable in law and on facts. At this stage, the High Court
was not required to appreciate the deposition of the injured eye
witness and what was required to be considered at this stage was
whether there is any prima facie case and not whether on the
basis of such material the proposed accused is likely to be
convicted or not and/or whatever is stated by the injured eye
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witness in his examination-in-chief is exaggeration or not. The
aforesaid aspects are required to be considered during the trial
and while appreciating the entire evidence on record. Therefore,
the High Court has materially erred in quashing and setting aside
the order passed by the learned Trial Court summoning the
accused to face the trial in exercise of powers under section 319
CrPC, 1973 on the reasoning mentioned hereinabove. Even the
observations made by the High Court referred to hereinabove are
on probability. Therefore, the impugned judgment and order
passed by the High Court is not sustainable in law and on facts
and is beyond the scope and ambit of section 319 CrPC, 1973."
(emphasis supplied)
9. In view of the law laid down by Apex Court in Sartaj Singh's
case (supra) it can be safely said that law laid down by Single Bench in the
case of Laxmi vs. State of Haryana and another (supra) is per incuriam
and is not binding.
10. Consequently, in the considered opinion of this Court so far as
Kulwinder Kaur, Sabhi and Surjeet are concerned, no fault can be found
with the orders passed by the Trial Court. Precise contention raised by
counsel for the petitioners stands answered in reference to question No.5 by
the Constitutional Bench in Hardeep Singh's case (supra) holding as
under :-
"Question No.V
Q.V Does the power under Section 319 Cr.P.C. extend to persons
not named in the FIR or named in the FIR but not chargesheeted
or who have been discharged?
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A. A person not named in the FIR or a person though named in
the FIR but has not been chargesheeted or a person who has
been discharged can be summoned under Section 319 Cr.P.C.
provided from the evidence it appears that such person can be
tried along with the accused already facing trial. However, in so
far as an accused who has been discharged is concerned the
requirement of ? Sections 300 and 398 Cr.P.C. has to be
complied with before he can be summoned afresh."
11. However, w.r.t. other petitioners there is nothing apart from the
bald allegation that they were also part of the assembly. Thus, Trial Court
erred in summoning the other petitioners namely Lally, Happy, Bhola and
Babbu. Consequently, the petition qua them is ordered to be allowed.
12. Ordered accordingly.
December 19, 2022 (PANKAJ JAIN)
Dpr JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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