Punjab-Haryana High Court
Kishmish Garg vs State Of Punjab on 28 August, 2023
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
108
2023:PHHC:115518
CRR-1913-2023
Date of decision: August 28th, 2023
Kishmish Garg
.....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Present: Mr. M.S. Khaira, Senior Advocate
with Ms. Ritu Punj and Ms. Navdeep Kaur, Advocates
for the petitioner.
MANJARI NEHRU KAUL, J.
The petitioner is impugning the order dated 13.07.2023
passed by learned Special Court, Moga, whereby an application moved
by the prosecution for discharge of petitioner-Kishmish Garg has been
dismissed and instead he had been summoned to face trial along with
already challaned co-accused Sukhdev Singh in FIR No.44 dated
04.04.2019 under Section 22 of the NDPS Act which was registered
against both the petitioner as well as co-accused Sukhdev Singh.
2. Learned senior counsel has made the following
submissions:
On the fateful day i.e. 04.04.2019, the petitioner was just
travelling with co-accused Sukhdev Singh, when their car was stopped
by the police party and recovery of 24000 intoxicant tablets Mark
Clovidol-100 SR and 7200 intoxicant tablets of Prozolam 0.5 was
allegedly been effected from the car. Though, on the spot itself the
petitioner had apprised the police party qua his innocence, and that he
had no role to play in the crime in question, however, it fell on deaf
ears. Thereafter, his brother moved an application before the authorities
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concerned qua his false implication in the FIR. The application was
marked on 01.07.2019 to I.G. Ferozepur Range, Ferozepur, for carrying
out a fair investigation. On 04.07.2019, the I.G., Ferozepur Range,
Ferozepur, in turn marked the investigation to S.S.P., Faridkot and S.P.
(D) Faridkot. The S.S.P., Faridkot, on directions of I.G.P., Ferozepur,
then handed over the entire investigation to S.P. (D), Faridkot.
The record of the case was called for, the concerned parties were heard
and joined, and their statements recorded. After a thorough
investigation, S.P. (D), Faridkot, rightly concluded that the petitioner
was innocent and had been falsely implicated in the case in hand.
Thereafter, the S.P. (D) forwarded his report to S.S.P., Faridkot, who in
turn, forwarded it to I.G. Ferozepur Range vide letter dated 26.08.2019.
The report was finally approved by A.D.G.P. (Crime) posted in the
office of Director, Bureau of Investigation, pursuant to which an
application for the discharge of the petitioner was moved before the
trial Court concerned by the S.H.O., Police Station Nihal Singh Wala
on 09.10.2019 (Annexure P-1). The aforesaid application remained
pending and undecided, however, in the meantime, the Court also
ordered the petitioner to be released from custody till further orders
vide order dated 30.10.2019 (Annexure P-2). After being released on
30.10.2019, no charges were framed against the petitioner and it was
also a matter of record that he had neither misused his concession of
bail nor had he been involved in any other criminal case much less
under the NDPS Act. When the trial was at an advance stage, the
prosecution yet again made a prayer before the trial Court for allowing
application dated 09.10.2019 (Annexure P-1). However, the trial Court,
instead of allowing the application seeking discharge of the petitioner,
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erroneously summoned him under Section 319 Cr.P.C. and that too,
four years after he had been declared innocent by the investigating
team; it was a matter of record that no new incriminating material in the
interregnum had come to light against the petitioner.
3. Learned senior counsel has further vehemently argued that
the Hon'ble Supreme Court in a catena of judgments has categorically
held that merely because the name of a person is disclosed in the FIR, it
would not be a sufficient enough ground to warrant his summoning
under Section 319 Cr.P.C. He submits that no doubt the petitioner was
travelling with the co-accused and the alleged recovery too had been
effected in his presence, however, it was from the boot of the car of the
co-accused and hence, it could not be said to be from the conscious
possession of the petitioner. It has, thus, been vehemently asserted that
the impugned order was patently illegal as there was no material on
record from which the involvement of the petitioner in the crime in
question could be even remotely discerned, which in turn could lead to
his conviction in the instant case.
4. I have heard learned senior counsel for the petitioner and
perused the relevant material on record.
5. The petitioner is aggrieved by the dismissal of the
application dated 09.10.2019 (Annexure P-1) moved by the prosecution
for his discharge as well as the order vide which he has been summoned
to face trial as an accused under Section 319 Cr.P.C.
6. The law is well settled that an accused can be discharged in
a case only if, even presuming the entire prosecution evidence to be
true, no case would be made out against him. It is a matter of record
that the application (Annexure P-1) seeking discharge of the petitioner
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was still pending for decision, hence, it is not that after the discharge of
the petitioner by the Court, he had been summoned under Section 319
Cr.P.C. Mere pendency of the application (Annexure P-1) could not
have, in any manner, come in the way of the trial Court from exercising
its powers suo moto under Section 319 Cr.P.C. It may be pointed out
that while exercising its powers under Section 319 Cr.P.C., the Court
has to see whether there exists some material which prima facie links
the person, sought to be summoned as an additional accused to the
crime in question. Merely on an application moved by the brother of
the petitioner, if the Investigating Officer had found him innocent, it
cannot be a ground to not summon the petitioner under Section 319 as
it would defeat the very purpose and object of Section 319 Cr.P.C.,
which is, that no person, who prima facie, appears guilty, escapes trial
to that guilt. In Hardeep Singh Versus State of Punjab 2014 (3) SCC
92, the Hon'ble Supreme Court has laid down the following
parameters, which must be taken into account while summoning a
person as an additional accused under Section 319 Cr.P.C.:-
98. Power under Section 319 Cr.P.C. is a discretionary
and an extra-ordinary power. It is to be exercised
sparingly and only in those cases where the circumstances
of the case so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that
some other person may also be guilty of committing that
offence. Only where strong and cogent evidence occurs
against a person from the evidence led before the court
that such power should be exercised and not in a casual
and cavalier manner.
99. Thus, we hold that though only a prima facie case is to
be established from the evidence led before the court not
necessarily tested on the anvil of Cross-Examination, it
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requires much stronger evidence than mere probability of
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his complicity. The test that has to be applied is one which
is more than prima facie case as exercised at the time of
framing of charge, but short of satisfaction to an extent
that the evidence, if goes unrebutted, would lead to
conviction. In the absence of such satisfaction, the court
should refrain from exercising power under Section 319
Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if
'it appears from the evidence that any person not being
the accused has committed any offence' is clear from the
words "for which such person could be tried together
with the accused." The words used are not 'for which
such person could be convicted'. There is, therefore, no
scope for the Court acting under Section 319 Cr.P.C. to
form any opinion as to the guilt of the accused.
Q.(v) In what situations can the power under this section
be exercised: Not named in FIR; Named in the FIR but not
charge-sheeted or has been discharged?"
7. Trite to say that under Section 319 (1) Cr.P.C., the power
of a Court to summon some person can also be exercised suo moto, not
necessarily on an application moved under Section 319 Cr.P.C., if the
Court is prima facie satisfied that any person other than the accused has
committed any offence for which he should be tried with the other
accused, who is already facing trial.
8. Adverting to the case in hand, the petitioner as per his own
admission, was travelling with the co-accused when the car was
intercepted by the police and subsequently, a huge recovery of 24000
intoxicant tablets Mark Clovidol-100 SR and 7200 intoxicant tablets of
Prozolam 0.5 was allegedly effected from the boot of the car.
Thereafter, a personal search of both the petitioner as well as
co-accused was carried out, after due compliance of the provisions of
Section 50 of the NDPS Act. The said search was carried out by a
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Chandigarh
Gazetted Officer, D.S.P. Kuljinder Singh. It is also a matter of record
that after the registration of the FIR, and investigation carried out,
report under Section 172 (2) Cr.P.C. was prepared by the police against
the petitioner as well as co-accused Sukhdev Singh. However,
subsequently, the petitioner was declared innocent, pursuant to an
investigation carried out by S.P. (D), Faridkot, on an application moved
by the petitioner's brother. Though the petitioner was declared innocent
in the inquiry conducted by S.P. (D), Faridkot, however, it is a matter
of record that, strangely, Gazetted Officer D.S.P. Kuljinder Singh, in
whose presence, search of the car as well as the person of the petitioner
was carried out, was neither called, joined or heard by the Inquiry
Officer i.e. S.P. (D), Faridkot during investigation. Still further and
most significantly and as not disputed by the learned Senior counsel
also, PW-1 S.I. Harbans Lal (Investigating Officer) and PW-2 D.S.P.
Kuljinder Singh, while stepping into the witness box during trial
deposed as per the initial version detailed in the FIR in question,
wherein they reiterated that a recovery of 24000 intoxicant tablets Mark
Clovidol-100 SR and 7200 intoxicant tablets of Prozolam 0.5 was
effected from car, in which both the petitioner and his co-accused were
travelling on the fateful day. It would also be most pertinent to refer to
the deposition of PW-4 Inspector Paramjeet Kuarm (Annexure P-7),
wherein he categorically stated "After completion of investigation I had
prepared challan against accused Sukhdev Singh alias Kala present in
the court and Kishmish Garg alias Kinu. I have seen said report under
Section 73 Cr.P.C. on the case file and same is Ex.P29 which bears my
signature. But thereafter accused Kismish Garg was declared innocent
during inquiry and challan was not presented against Kishmish Garg
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alias Kinu". Thus, once the investigation was complete and even final
report under Section 173 (2) Cr.P.C. was ready to be presented, this
Court finds it very odd and in fact, it does raise eyebrows, as to how the
S.P. (D), Faridkot, during his investigation, concluded that the petitioner
was innocent, more so, when it was a matter of record that the Gazetted
Officer PW-2 D.S.P. Kuljinder Singh, who was the most crucial witness
was not even joined, for reasons, best known to the S.P. (D), Faridkot.
9. This Court finds no credence in the submission made by
learned senior counsel that the recovery was not effected from the
conscious possession of the petitioner. Section 35 of the Act deals with
the presumption of culpable mental state of an accused i.e. whether he
had any intention or knowledge of a fact etc. The onus to prove that there
was no mental culpability of the petitioner would be delved into during
trial and cannot be gone into at this stage.
10. Coming to the next contention of the learned senior
counsel that the petitioner had been summoned to face trial as an
additional accused at a highly belated stage i.e. almost at the fag end of
the trial, is yet again devoid of any merit as the law in the said regard
stands settled by the Hon'ble Supreme Court. The Hon'ble Supreme
Court in Sukhpal Singh Khaira Versus State of Punjab 2022 LiveLaw
SC 1009 has held that a person can be summoned to face trial as an
additional accused under Section 319 Cr.P.C., at any stage of the trial,
but before the sentence of conviction is passed or judgment of acquittal
is delivered, as the case may be. The Court below thus, cannot be
faulted with for passing the impugned order as it was well within its
right to summon the accused to face trial along with co-accused since
the trial was still underway.
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Chandigarh
11. This Court, as a sequel to the above, has no hesitation in
observing that the Court below has exercised its discretionary power
under Section 319 Cr.P.C. judiciously, after giving due regard to the
facts and circumstances of the case in hand in addition to the evidence,
led during the trial.
12. The instant revision being devoid of any merit is
dismissed.
13. However, it is made clear that anything observed
hereinabove shall not be construed to be an expression of opinion on
the merits of the case.
August 28th, 2023 (MANJARI NEHRU KAUL)
Puneet JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
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Chandigarh
