Punjab-Haryana High Court
Gulab vs State Of Haryana And Ors on 23 September, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) CRR-3203-2011 (O&M)
... Petitioner
Gulab
Versus
State of Haryana and others ... Respondents
(2) CRM-M-2231-2012 (O&M)
... Petitioner
Gulab
Versus
State of Haryana and others ... Respondents
Date of Decision:- 23.9.2022
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Anurag Jain, Advocate with
Ms. Kannupriya, Advocate for the petitioner(s).
Mr. Arun Beniwal, DAG, Haryana.
Mr. Parmod Parmar, Advocate for respondents No. 2 and 3.
*****
GURVINDER SINGH GILL, J.
1. This order shall dispose off the above mentioned two petitions filed on
behalf of Gulab (complainant) as both the said petitions arise out of the same
FIR i.e. FIR No. 3 dated 4.1.2008 under Sections 323, 325, 341, 147, 149,
506 IPC, Police Station Siwani, District Bhiwani and the issue involved
therein is as regards summoning of additional accused with the aid of
Section 319 Cr.P.C.
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CRM-M-2231-2012 (O&M)
2. A few facts necessary to notice for disposal of these petitions are that FIR
No. 3 dated 4.1.2008, Police Station Siwani, District Bhiwani was lodged at
instance of the petitioner-complainant against ten accused namely Rajender,
Ram Parkash, Sushil, Rohtash, Sanjay, Sombir, Jai Bhagwan, Rajpal,
Ramphal and Chhotu Ram. The matter was investigated by the police and
upon conclusion of investigation, challan was presented on 22.9.2008
against six accused out of the aforesaid ten accused, while the following four
persons were kept in column no. 2 :-
(i) Jai Bhagwan
(ii) Rajpal
(iii) Ramphal
(iv) Chhotu Ram
3. After framing of charges, the examination-in-chief of petitioner-complainant
Gulab was recorded on 1.6.2009 (Annexure P-3 in CRR 3203-2011).
Immediately upon recording of examination-in-chief of the complainant-
Gulab, an application was moved by prosecution under Section 319 Cr.P.C.
seeking summoning of four accused who had been kept in Column no. 2,
which was accepted by learned SDJM, Siwani vide order dated 6.6.2011 and
Jai Bhagwan, Rajpal, Ramphal and Chhotu Ram were ordered to be
summoned so as to face trial alongwith remaining accused.
4. Thereafter, two of the accused summoned with the aid of Section 319 Cr.P.C.
namely Rajpal and Ramphal preferred a revision petition in the Court of
Sessions challenging order dated 6.6.2011, which was accepted by the
learned Additional Sessions Judge, Bhiwani and the impugned order dated
6.6.2011 was set aside vide order dated 7.10.2011. The aforesaid order
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CRM-M-2231-2012 (O&M)
dated 7.10.2011 is under challange in the revision petition i.e. CRR-3203-
2011 filed by the complainant-Gulab.
5. The remaining two accused namely Jai Bhagwan and Chottu Ram, who had
not filed any revision petition so as to challange their summoning under
Section 319 Cr.P.C. moved an application before learned SDJM, Siwani
seeking their discharge mainly on the ground that order dated 6.6.2011
which had been challanged by the remaining two persons Rajpal and
Ramphal had been set aside. The learned SDJM, Siwani accepted the said
application and vide order dated 4.1.2012 (Annexure P-7 in CRM-M-2231-
2012). The said order dated 4.1.2012 has been challenged by the
complainant-Gulab by way of filing CRM-M-2331-2012 wherein a
challenge has also been made to order dated 7.10.2011 of learned Additional
Sessions Judge, Bhiwani, which otherwise is also assailed in criminal
revision as well.
6. The learned counsel for the petitioner has assailed order dated 7.10.2011
passed by learned Additional Sessions Judge, Bhiwani vide which order of
learned SDJM, Siwani summoning accused Rajpal and Ramphal under
Section 319 Cr.P.C. had been set aside, and also order dated 4.1.2012 passed
by learned SDJM, Siwani discharging the remaining two accused Jai
Bhagwan and Chottu Ram while submitting that the learned Additional
Sessions Judge, Bhiwani while accepting the revision petition had not
evaluated the evidence in the correct perspective and that the revision
petition was accepted even without issuing notice to the complainant. The
learned counsel has further submitted that when the remaining two accused
moved an application before the SDJM, Siwani for their discharge, one of
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CRM-M-2231-2012 (O&M)
the factors which weighed with the Presiding Officer for discharge of
accused Jai Bhagwan and Chottu Ram was that the case has been pending
since long and was one of the oldest cases identified in Action Plan 2011
which cannot be a valid reason for discharge.
7. The learned counsel has submitted that in the present case pursuant to
passing of the impugned orders, there has been further development
inasmuch as the injured Sardara Ram has been examined by the trial Court
who has stated in tune with the case of the complainant and even the doctor
has been examined whose testimony also lends corroboration to the case of
the complainant and that in these circumstances, four persons namely Jai
Bhagwan, Rajpal, Ramphal and Chhotu Ram, who have been kept in column
no. 2, in any case, deserve to be summoned and tried by the Court.
8. On the other hand, the learned counsel representing respondent no. 4 has
submitted that the impugned order dated 6.6.2011 passed by learned SDJM,
Siwani does not suffer from any infirmity and was passed after taking note
of the legal position as regards Section 319 Cr.P.C. It has been submitted
that since the impugned order dated 6.6.2011 was passed by learned SDJM,
Siwani in the presence of Public Prosecutor, the mere fact that the
complainant was not represented would be of no consequence. It has further
been submitted that since the trial in respect of the remaining six accused,
who had been tried by the trial Court, already stands concluded, there is no
occasion for trying the petitioners at this stage as additional accused.
9. This Court has considered rival submissions addressed before this Court.
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10. This Court is of the opinion that the impugned orders i.e. order dated
4.1.2012 passed by learned SDJM, Siwani and order dated 7.10.2011 passed
by learned Additional Sessions Judge cannot sustain for the following
reasons :-
(i) that order passed by learned Additional Sessions Judge, Bhiwani in
revision i.e. order dated 7.10.2011 whereby the order dated 6.6.2011
passed by learned SDJM under Section 319 Cr.P.C. has been set aside,
had been passed without issuing notice to the complainant, as is
evident from perusal of the impugned order dated 7.10.2011 and as
such is against the provisions of Section 397 read with Section 401(2)
Cr.P.C. which mandates that before passing any order adverse to
accused or any other person in a revision petition, such affected
accused or any person is required to be heard. The aforesaid issue is
squarely covered by a judgment of Hon'ble Apex Court in (2012) 10
SCC 517 - Manharibhai Muljibhai Kakadia and another versus
Shaileshbhai Mohanbhai Patel and others.
(ii) that the learned SDJM, Siwani while discharging the accused Jai
Bhagwan and Chottu Ram vide order dated 4.1.2012 had mainly
placed reliance upon order dated 7.10.2011 passed by learned
Additional Sessions Judge, Bhiwani which as per discussion being
made is found to be unsustainable. The other reason assigned by
learned SDJM, Siwani was that the case was very old and was
identified in Action Plan 2011 which cannot be made a basis for
discharging the accused in a hurried manner.
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CRM-M-2231-2012 (O&M)
(iii) that it will not be out of place to mention that while the application
under Section 319 Cr.P.C had been made immediately when
examination-in-chief of the complainant had concluded but as of now,
two more witnesses have been examined i.e. injured Sardara Singh
and Dr. Kriti Raj, who according to counsel for the petitioner
supported the case of the petitioner.
(iv) that the trial Court having framed charges against the accused Jai
Bhagwan and Chhotu Ram would not have any power to discharge the
accused, as the same would virtually amount to review of its own
order framing charges against the accused.
11. In view of the aforesaid reasoning, the impugned orders dated 4.1.2012
passed by learned SDJM and dated 7.10.2011 passed by the learned
Additional Sessions Judge are found to be unsustainable and deserve to be
set aside.
12. Consequently, the revision petition - CRR-3203-2011 is hereby accepted
and the impugned order dated 7.10.2011 passed by the learned Additional
Sessions Judge, Bhiwani is set aside. Similarly, the criminal miscellaneous-
CRM-M-2231-2012 is also accepted and the impugned order dated 4.1.2012
is set aside.
13. The trial Court is directed to consider the matter pertaining to Section 319
Cr.P.C. afresh while taking into account all such evidence, which may have
come on record as of now. It shall be open to the petitioner to move a fresh
application under Section 319 Cr.P.C. as there has been a substantial change
after disposal of the earlier application. In case, any such application is
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CRM-M-2231-2012 (O&M)
moved within 3 weeks from today, the trial Court shall endeavour to dispose
off the same expeditiously having regard to the fact that the matter pertains
to FIR lodged in the year 2008. Needless to mention, it shall be open to the
parties to work out some amicable settlement having regard to the fact that
occurrence pertains to the year 2008, and co-accused were released on
probation.
14. The petitions stand accepted in the aforesaid terms.
15. A photocopy of this order be placed on the file of connected case.
23.9.2022 (Gurvinder Singh Gill)
kamal Judge
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
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