Punjab-Haryana High Court
Raj Kaur vs State Of Haryana And Ors on 1 August, 2023
Neutral Citation No:=2023:PHHC:100183
CRR-2628 of 2019 (O&M) -1- 2023:PHHC:100183
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
244 CRR-2628 of 2019 (O&M)
Date of Decision:01.08.2023
Raj Kaur
....Petitioner
Versus
State of Haryana and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
****
Present: Mr. Ajit Singh Lamba, Advocate,
for the petitioner.
Ms. Harpreet Kaur, AAG, Haryana
Mr. Rakesh Nagpal, Advocate,
for the respondent No.2.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present is a revision petition filed for challenging the order dated
13.08.2019 passed by the learned trial Court while dismissing the application
under Section 319 of the Code of Criminal Procedure qua respondent No.2.
Learned counsel for the petitioner submitted that in the present case there are two
private respondents and on 09.03.2022 he had specifically stated that he does not
wish to press the petition at this stage qua respondent No.3 because he was already
facing the trial, therefore he is pressing the present petition only qua respondent
No.2 qua which the application under Section 319 of the Code of Criminal
Procedure has been dismissed.
2. Learned counsel for the petitioner submitted that it is a case where the
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petitioner who is a lady of the age of 30 years had lodged the FIR whereby her
husband was killed. He submitted that the petitioner is an eye witness to the
incident and the entire description has been so stated in the FIR that respondent
No.2 had hit her husband with Gandasa on head and on shoulder who thereafter
died. The same was again reiterated at the time when she deposed as prosecution
witness as PW1 and thereafter the application was moved under Section 319 of the
Code of Criminal Procedure. He further submitted that a perusal of the impugned
order dated 13.08.2019 passed by the learned Addl. Sessions Judge, Fatehabad
whereby the application for summoning of an additional accused under Section
319 of the Code of Criminal Procedure has been dismissed would show that the
record available with the learned Court was not properly appreciated. He submitted
that although it is correct that while summoning of an additional accused under
Section 319 of the Code of Criminal Procedure abudant caution has to be exercised
and for strong reasons an additional accused should be summoned because it
affects the right of an individual but that would not mean that the application for
summoning of an additional accused under Section 319 of the Code of Criminal
Procedure should be dismissed without even considering and appreciating the
entire record of the case available with the learned trial Court. He submitted that in
the impugned order the learned Court has referred to the injuries on the deceased
Gulab Singh by stating that there was only one incised wound on the parietal
region scalp of the deceased Gulab Singh and observed that there is only one head
injury on the scalp of the decased which has been found to be attributable to the
accused facing trial i.e. respondent No.3 and there is no sharp injury on the
shoulder of the deceased. Learned counel has however brought to the notice of this
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Court the medical report which has been reproduced at page 12 of the paper-book
to show that in fact there were four injuries on the deceased and there was one
more incised wound on the left forearm with a sharp weapon and the injuries
which have been so mentioned are reproduced as under:-
"i) Defuse Swelling right fronto-temporal-parietal region of scalp.
Advised general surgeon opinion - Blunt weapon.
ii) Defuse Swelling left temporo-parietal region of scalp. Advised
general surgeon opinion - Blunt weapon.
iii) Incised would 3x0.5 cms on mid parietal region of scalp.
Advised general surgeon opinion -Sharp weapon.
iv) Incised would 5x2 cms on ventral aspect of left forearm.
Advised orthro opinion - Sharp weapon."
3. He submitted that the aforesaid injuries very clearly suggest that the
injury was caused by a sharp weapon on the deceased and even otherwise it was
only to be seen at the time of trial that whether the injury was caused by the present
respondent No.2 on both the sides i.e. by using a sharp side and on the blunt side
but at least the medical opinion was required to be taken into consideration while
deciding the application under Section 319 of the Code of Criminal Procedure
apart from the other investigation being conducted by the police in this regard but
no other reference was made with regard to any other material which was available
on record and for only the medical opinion which was erroneously considered by
the learned trial Court. He submitted that the law laid down by a Constitutional
Bench of the Hon'ble Supreme Court in Hardeep Singh versus State of Haryana
2014 AIR (SC) 1400 has not been properly followed and because there had been
no proper application of mind by the learned trial Court.
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4. On the other hand, Mr. Rakesh Nagpal, learned counsel for respondent
No.2 submitted that the order has been rightly passed because even as per the order
there is no sharp injury on the shoulder of the deceased. He further submitted that
after the aforesaid impugned order was passed one more witness was examined as
PW9 who although was not present on the spot but had stated that respondent No.2
was not involved in the offence and therefore there is no wrong in the impugned
order passed by the learned Addl. Sessions Judge, Fatehabad.
5. I have heard the learned counsel for the parties.
6. It is a settled law that for the purpose of summoning of an additional
accused under Section 319 of the Code of Criminal Procedure the Court has to be
extremely cautious because after an accused has already been exonerated by the
police and he is required to be summoned, strong reasons have to be given by the
learned trial Court. However, the reasons should be based upon the material
available on record and which should be properly appreciated. However, a perusal
of the impugned order would show that the material which was available on record
especially the medical report has not been properly appreciated by the learned trial
Court in view of the injuries which have been so mentioned in the medical report
as reproduced by the petitioner in the present case. This Court would therefore not
go into the details of the above but prima facie is of the view that the impugned
order is erroneous order and therefore is liable to be set aside.
7. Consequently, the petitioner petition is allowed and the impugned
order dated 13.08.2019 is set aside. The learned Addl. Sessions Judge, Fatehabad
is directed to pass a fresh order after hearing learned counsels strictly in
accordance with law and in the light of a judgment of a Constitutional Bench of the
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Hon'ble Supreme Court in Hardeep Singh's case (supra). The passing of fresh
order will not be influenced by the earlier order which was passed and also the
present order which has been passed by this Court and the learned Addl. Sessions
Judge will apply his fresh mind strictly in accordance with law. The order shall be
passed within a period of four weeks from the date of receipt of a copy of this
order.
(JASGURPREET SINGH PURI)
JUDGE
August 01, 2023
dinesh
Whether speaking : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:100183
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