Punjab-Haryana High Court
Jaswant vs State Of Haryana & Ors on 7 August, 2024
Neutral Citation No:=2024:PHHC:104192
CRM-M-24107-2018 (O&M) -1-
115+201
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-31003-2024 in/and
CRM-M-24107-2018 (O&M)
Date of decision: 7th August, 2024
Jaswant
...Petitioner(s)
Versus
State of Haryana and others
...Respondent(s)
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present: Mr. Kanwal Goyal, Advocate for the petitioner.
Mr. Neeraj Poswal, AAG, Haryana.
Ms. Suresha Rani, Advocate for respondents No. 2 to 4.
***
MANISHA BATRA, J (ORAL):-
CRM-31003-2024
This application has been filed by the applicant for placing on
record the copy of challan as Annexure P-11.
For the reasons mentioned in the application, the same is
allowed, subject to all just exceptions. Annexure P-11 is ordered to be taken
on record.
Main case
The instant petition has been filed under Section 482 of Cr.P.C.
by the petitioner challenging the order dated 06.09.2017 passed by the Court
of Sub Divisional Judicial Magistrate, Kanina in criminal case No. RBT-285
of 2014 titled as 'State Vs. Dashrath and others', arising out of FIR No. 415
dated 07.11.2015 registered under Sections 323/34/506 read with Section 34
of IPC, 1860 at Police Station Kanina as well as the order dated 23.04.2018
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passed by the Court of learned Additional Sessions Judge, Narnaul in
criminal revision No. 62 of 2017, thereby dismissing the petition filed by the
petitioner against the order dated 06.09.2017.
2. Brief facts of the case relevant for the purpose of disposal of
this petition are that on 05.11.2015, on receipt of a ruqa at the police station
from Community Health Centre, Kanina regarding admission of injured
Bhoop Singh, Krishna, Savita and Jaswant all residents of PS Kanina,
District Mahendergarh and their being referred to the PGIMS, Rohtak, a
police party reached at Community Health Centre on 06.11.2015. The
injured Bhoop Singh was admitted therein, whereas the remaining injured
had been discharged. He recorded his statement alleging therein that on
05.11.2015 at about 8/9 PM, he had gone towards his house to relieve
himself when accused Dashrath and Bhawani being armed with lathis,
opened an assault upon him and caused injuries on his person. In the
meanwhile, the present respondents and co-accused Jagdish, Chanda, Neetu,
Kanchan and Raju also reached there and struck one blow each on his head
with lathis which they were carrying due to which he fell down and became
unconscious. The noises attracted his daughters-in-law Krishna, Sunita and
son Jaswant, who rushed to the spot but they too sustained injuries at the
hands of the assailants. On his statement, initially a case under Section 323
read with Section 506 of IPC was registered. Investigation proceedings were
initiated. Subsequently, offence under Section 325 of IPC was also added.
The accused Bhawani Singh, Dashrath, Chand Devi, Raju @ Rajbala and
Nitu were arrested on 18.11.2017 and accused Jagdish was arrested on
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02.12.2015. As per the record, the respondents No. 2 to 4 who were named
in the FIR were found to be innocent and had not been arrested and
challaned. Their names were kept in column No.2 of the challan report. After
completion of usual formalities and investigation, challan was presented
before the Court and the co-accused are facing trial for commission of the
aforementioned offences. After examining injured Krishna Devi and
Jaswant, who appeared as PW-1 and PW-2 respectively before learned trial
Court, an application under Section 319 of Cr.P.C. had been moved for
summoning the respondents No. 2 to 4 as additional accused. The learned
trial Court dismissed this application by order dated 06.09.2017. Vide order
dated 23.04.2018, the revision petition as filed against the said order also
stands dismissed by the Court of learned Additional Sessions Judge,
Narnaul.
3. The present petition has been filed by the petitioner on the
grounds and it is argued by his counsel that the impugned orders are not
sustainable in the eyes of law as while passing the same the Courts below
did not appreciate the evidence produced on record in a proper perspective,
thereby causing manifest injustice. There was overwhelming evidence on
record to prove the complicity of respondents No. 2 to 5 in the subject crime.
However, the learned trial Court wrongly did not arraign them as additional
accused. With these broad submissions, it is urged that the petition be
allowed, the impugned orders be set aside and respondents No. 2 to 4 be
ordered to be summoned as additional accused to face trial along with the
accused already arraigned.
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4. Per contra, learned counsel for respondents No. 2 to 4 has
argued that learned trial Court and learned revisional Court had passed well
reasoned order after taking into consideration, the nature of the evidence
produced on record as well as other circumstances of the case and no ground
for interfering in the same is made out. Accordingly, it is urged by him that
the petition does not deserve to be allowed.
5. Learned State counsel has supported the arguments as raised by
learned counsel for the petitioner by submitting that the petition deserves to
be allowed.
6. I have heard learned counsel for the parties at considerable
length and have gone through the record carefully.
7. Section 319 of Cr.P.C. empowers the Court to add any person,
not being the accused before it, but against whom there appears during
trial ,sufficient evidence indicating his involvement in the offence, as an
accused and direct him to be tried along with the other accused. The
principle of law with reference to exercise of jurisdiction under this Section
has been well settled by the Constitutional Bench of Hon'ble Supreme Court
in landmark judgment cited as 'Hardeep Singh and others Vs. State of
Punjab and others, (2014) 3 SCC 92', wherein it was observed that the
power under Section 319 Cr.P.C. is discretionary and an extraordinary
power. It has 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
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evidence occurs against a person from the material placed before the Court
that such power should be exercised and not in a casual and cavalier manner.
It was also observed 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 requires much strong evidence than mere probability of
his complicity. The test that has to be applied is one which is more than
prima facie case as has been established 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 of Cr.P.C.
8. Reference can also be made to a recent pronouncement of
Hon'ble Supreme Court cited as 'Sagar Vs. State of UP and another,
(2022) 6 SCC 389' wherein the Apex Court observed as under:-
"The Constitution Bench has given a caution that power under
Section 319 of the Code is a discretionary and extraordinary
power which should be exercised sparingly and only in those
cases where the circumstances of the case so warrant and the
crucial test as notice above has to be applied is one which is
more that 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...."
9. It is also well settled proposition of law that an order under
Section 319 of the Cr.P.C. should not be passed only because the first
informant or one of the witnesses seeks to implicate other person(s).
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Sufficient and cogent reasons are required to be assigned by the Court so as
to satisfy the ingredients of the provisions. Mere ipse dixit would not serve
the purpose. The evidence must be convincing one at least for the purpose of
exercise of the extraordinary jurisdiction and for this purpose, the Courts are
required to apply stringent tests, one of such tests being whether evidence on
record is such which would reasonably lead to conviction of the person
sought to be summoned.
10. On applying the above discussed proposition of law to the
peculiar facts and circumstances of the case, I am of the considered opinion
that the orders passed by the learned trial Court and learned revisional Court
are not suffering from any illegality and do not warrant any interference. No
doubt, the proposed accused were named in the FIR. However, during the
investigation which was conducted by the police, they were found to be
innocent and their names were kept in column No.2 of challan report. Copies
of statements of the injured Krishna Devi as PW-1 and PW-2 Jaswant have
been placed on record. They are shown to have stated in their respective
depositions that the respondents/proposed additional accused had caused
injuries on the head, left wrist and right wrist of PW-1. PW2 attributed
injuries to the co-accused already arraigned and not to the present petitioner.
They are shown to have some material improvements which are at variance
with their statements during the courts of investigation. The learned courts
below after considering their statement in detail had observed that no ground
for summoning the respondents No.2 to 4 as additional accused had been
made out. It is explicit from a perusal of the statements of PW-1 and PW-2
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that no evidence what to say some stronger evidence then mere possibility of
their complicity in the said offence has come on record. On the basis of mere
probability of their complicity, they could not be summoned the face of trial
along with the accused already arraigned. The evidence produced on record
for the purpose of arriving at a finding that there was a complicity of the
proposed accused in the crime, must not be more than an evidence, which if
goes unrebutted would lead to conviction, but it must be more than prima
facie evidence recorded at the time of framing of charge. There is absence of
such satisfaction as in the evidence so led by the petitioner and PW-1
Krishna. As such, in my considered opinion, there was no scope for the trial
Court under Section 319 of Cr.P.C. to form any opinion as to the guilt of the
proposed accused and in the absence of such satisfaction, the learned trial
Court rightly refrained itself from exercising powers under Section 319 of
Cr.P.C. as the satisfaction desirable for summoning the proposed accused
under Section 319 of Cr.P.C. was not found on the record. As such, no
irregularity or illegality can be stated to have been committed by learned
trial Court while passing the impugned order and dismissing the application
of the petitioner, which was passed after analyzing the facts of the case in a
proper perspective. This Court, therefore, has no reason to interfere with the
findings as given by learned trial Court. Accordingly, the petition is
dismissed.
[MANISHA BATRA]
JUDGE
7th August, 2024
Parveen Sharma 1. Whether speaking/ reasoned : Yes / No
2. Whether reportable : Yes / No
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