Punjab-Haryana High Court
Ramesh Gandhi vs State Of Haryana And Another on 2 March, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
269
CRR-452-2021 (O&M)
Date of decision: 02.03.2022
RAMESH GANDHI
...Petitioner
Versus
STATE OF HARYANA AND ANOTHER
.....Respondents
CORAM: HON'BLE MR. JUSTICE HARNARESH SINGH GILL
Present:- Ms. Rupinder Kaur Thind, Advocate
for the petitioner.
Mr. Tanuj Sharma, AAG Haryana.
Mr. Sandeep Kumar Goyat, Advocate
for respondent No.2.
****
HARNARESH SINGH GILL, J. (ORAL)
Case is taken up for hearing through video conferencing.
Challenge is to the order dated 07.03.2020 passed by the
learned Additional Sessions Judge, Sirsa, vide which the application
under Section 319 Cr.P.C., filed by the complainant, has been allowed
and the petitioner has been summoned as an additional accused in FIR
No.114 dated 08.09.2017, under Sections 148, 458, 460, 323, 302, 149
and 285 IPC and Section 25 of the Arms Act, at Police Station NS
Chopta, District Sirsa.
Learned counsel for the petitioner submits that the learned
trial Court, while passing the impugned order, has not appreciated and
considered the facts and the evidence available on record. He further
submits that, as per the prosecution, the alleged occurrence took place
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on 07.09.2017; that deceased, namely, Hanuman, was the father of the
complainant; that, during the inquiry/investigation conducted by the
Deputy Superintendent of Police, it was found that the rifle of the
petitioner was deposited with the Police, qua which the receipt was also
produced before the Investigating Officer and accordingly, the petitioner
was kept in column No.2 and that co-accused, namely, Mandeep @
Punjabi and Ranjit @ Billa, have specifically stated that the petitioner
was not present at the spot. He further submits that except the
complainant, no other prosecution witness has been examined thus far;
that complainant-Sandeep Kumar, while appearing as PW-9 before the
trial Court, has only stated that the petitioner was armed with a gun and
no specific injury has been attributed to him and that it was only on this
assertion of the complainant, the petitioner has been summoned by the
learned trial Court. Still further, it is submitted that neither any gun shot
has been fired by the petitioner nor there was any gun shot injury on the
person of the deceased and that there was no gun shot injury on the
person of injured-Pardeep either.
On the strength of the aforesaid submissions, it is submitted
that there is no material on record, which can justify the summoning of
the petitioner as an additional accused, which fact has clearly been
brushed aside by the learned trial Court. Moreover, mere naming the
petitioner to be the person present at the spot armed with a gun, by the
complainant/respondent No.2 in his testimony before the Court as PW-9,
cannot be made the basis for summoning the petitioner, especially when
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the other evidence does not establish any guilt on the part of the
petitioner.
In support of his contentions, learned counsel for the
petitioner relies upon the judgment passed by Hon'ble Supreme Court in
Shiv Prakash Mishra vs State of Uttar Pradesh and another, 2019 (5)
R.C.R. (Criminal) 946 and Ramesh Chandra Srivastava vs State of Uttar
Pradesh and another, 2021 (4) R.C.R. (Criminal) 219.
Per contra, learned State counsel assisted by learned counsel
for the complainant submits that complainant, namely, Sandeep Kumar, is
the only eye-witness of the occurrence, who while appearing before the
trial Court as PW-9 has specifically named the petitioner with the
allegation that being a member of an unlawful assembly, he was armed
with a gun and that the prosecution agency has not given any cogent
reason for placing the petitioner in column No.2. Therefore, no fault
could be found with the impugned order. Even otherwise, it is submitted
that at the stage of allowing the application under Section 319 Cr.P.C.,
the Court has to prima facie satisfy itself about the complicity of the
accused sought to be summoned as additional accused.
I have heard the learned counsel for the parties.
It is the case of the petitioner that he was neither present at
the spot, nor armed with any gun and still further, the petitioner was not
attributed any injury. The allegations against the petitioner do not seem
to satisfy the satisfaction that is required for summoning an accused
under Section 319 Cr.P.C. The standard of proof for summoning a person
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as an accused person under Section 319 Cr.P.C. must be higher than the
one employed for framing the charge against the accused. While dealing
with the aforesaid aspect of the matter, the Hon'ble Apex Court in Shiv
Prakash Mishra's case (supra), has held as under:-
9. "The standard of proof employed for summoning a
person as an accused person under Section 319 Cr.P.C.,
1973 is higher than the standard of proof employed for
framing a charge against the accused person. The power
under Section 319 Cr.P.C., 1973 should be exercised
sparingly. As held in Kailash v. State of Rajastan and
another 2008(2) RCR (Criminal) 200: (2008) 14 SCC 51,
the power of summoning an additional accused under
Section 319 Cr.P.C., 1973 should be exercised sparingly. The
key words in Section are it appears from the evidence..... any
person..... has committed in 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., 1973
would be used by the Court."
The petitioner was found innocent during investigation. It
could not even be established on record whether the petitioner was
attributed any injury and even as per the version of the complainant
himself, the petitioner had allegedly fled away from the spot. Thus, the
material on record, does not make it a fit case to summon the petitioner as
an additional accused.
The matter can be looked from another angle. It is the case
of the complainant that the petitioner armed with a gun had come to the
place of occurrence along with other co-accused. However, it does not
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seem to the common prudence that a person coming with a premeditated
mind at the spot with a gun, would flee without even firing or attempt a
shot. This clearly points towards a false implication of the petitioner.
In view of the above, the present revision petition is allowed
and the order dated 07.03.2020 passed by the learned Additional
Sessions Judge, Sirsa, is hereby set aside, qua the petitioner.
(HARNARESH SINGH GILL)
JUDGE
02.03.2022
Aman Jain
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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