Punjab-Haryana High Court
Santokh Singh vs State Of Punjab on 18 March, 2024
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203 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-29680-2022
Date of Reserve:05.12.2023
Date of Decision:18.03.2024
Santokh Singh ...Petitioner
Vs.
State of Punjab and Anr. ...Respondents
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Mr. Amandeep Singh, Advocate
for the petitioner.
Mr. M.S. Bajwa, DAG, Punjab.
Mr. Deepak Goyal, Advocate
for respondent No.2.
***
N.S.Shekhawat J.
1. The petitioner has filed the present petition under Section 482 Cr.
P.C with a prayer to set aside the order dated 28.04.2022 (Annexure P-7) passed
by the Court of Judicial Magistrate Ist Class, Samrala, whereby the application
under Section 319 Cr.P.C filed by the prosecution was allowed and the
petitioner was ordered to be summoned to face trial under Sections 406/420 of
IPC.
2. As per the case of the prosecution, one FIR No.23 dated
03.02.2016, under Sections 406,420 of IPC, Police Station Samrala, District
Ludhiana (Annexure P-1) was registered against Harjit Singh, his wife Paramjit
Kaur and Santokh Singh, the petitioner. As per the complainant, Harjit Singh,
main accused was the relative of his daughter-in-law and they had good
relations with Harjit Singh and his family members. The petitioner is the father
of Harjit Singh, the main accused.Harjit Singh was working as a property
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dealer and assured the complainant that he would get his land sold on good
price and will also purchase a bigger parcel of land for him for the same
amount. On the assurance of Harjit Singh, Amar Singh, uncle of the
complainant and Gurwinder Singh, son of the complainant had agreed to sell
their lands. On 06.06.2014, the complainant side sold its land to Rupinderjit
Singh and Gurjit Singh for a sum of Rs.1,23,33,000/-. As per the complainant,
the amount of registered sale deed was shown as Rs.47.70 lacs, at the instance
of Harjit Singh. However, the actual sale price was Rs.1,23,33,000/-. The cash
amount was kept by Harjit Singh and he had said that he would purchase other
land for the complainant side. Harjit Singh also gave a sum of Rs.18 lacs to the
complainant and his family members out of the said amount and the remaining
amount was retained by him. Later on, the amount was kept by Harjit Singh
with himself. However, when Harjit Singh did not get the registered sale deed
executed in favour of the complainant side; the complainant and other family
members visited their house and discussed everything with Santokh Singh, his
father and Paramjit Kaur, his wife. Harjit Singh agreed to return the amount and
gave two cheques for a sum of Rs.50 lacs each in the name of Amar Singh and
promise to get the cheques cleared. However, when Amar Singh presented the
said cheques, the cheques were dishonoured, as sufficient amount was not
available in the account of Harjit Singh. On this, the complainant along with his
uncle and other relatives went to the house of Harjit Singh, where his wife
Paramjit Kaur and his father Santokh Singh were also present. The cheques and
the memo were taken away by Harjit Singh and he showed to his father,
Santokh Singh. Santokh Singh handed over the said cheques and memo to
Paramjit Kaur and she took away the cheques and memo inside. When the
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complainant requested them to return the cheques and memo, then Harjit Singh
brought his licensed revolver and threatened them to leave the place. With
these broad allegations, the respondent No.2/complainant had got the FIR
registered against Harjit Singh, his wife Paramjit Kaur and his father Santokh
Singh (petitioner).
3. After holding the investigation, a report was prepared by
Superintendent of Police, Khanna and the petitioner and Paramjit Kaur were
found to be innocent. Later on, during the course of trial the statements of
PW-1, Ranjit Singh, PW-2, Sumanjot Kaur and PW-3, Gurwinder Singh, son of
the complainant was recorded. After recording the Examination-in-Chief of
three witnesses, the application under Section 319 Cr.P.C was moved, which
was allowed.
4. Learned counsel for the petitioner contends that the petitioner has
been falsely involved in the present case, being the father of Harjit Singh, the
main accused. In fact, he is resident of United States of America and resides
most of the time over there. Even, from the version of the complainant, it was
apparent that Harjit Singh was acting as a property dealer and all the
transactions had taken place with the intervention of Harjit Singh, who is
already facing the prosecution. In the end of the complaint, Annexure P-1, it
was alleged that the cheques and memos regarding dishonour of cheques were
handed over by the complainant to Harjit Singh and the petitioner was also
present there. Harjit Singh, handed over the dishonoured cheques and the
memos to the petitioner, who further gave it to wife of Harjit Singh. When the
complainant side asked for the dishonoured cheques and memo, Harjit Singh
threatened the complainant by pointing his licensed revolver towards him and
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asked him to leave. In the present case, Harjit Singh, who was the main accused
is already facing the prosecution. Learned counsel further contends that a
detailed report was prepared by the Superintendent of Police, Khanna and the
petitioner was found innocent. He further contends that while appearing in the
witness box, the same story was again narrated by the witnesses, with slightly
improved version and the petitioner has been wrongly ordered to be summoned
by the Trial Court.
5. On the other hand learned counsel for respondent No.2 submits
that the petitioner has been correctly summoned by the Trial Court, as his
involvement was shown from the very beginning and had actively connived
with his son Harjit Singh. Learned counsel further submitted that PW-1, Ranjit
Singh, PW-2 Sumanjot Kaur and PW-3 Gurwinder Singh, son of the
complainant had clearly assigned the specific role to the petitioner and after due
appreciation of evidence, the petitioner was also arraigned as an accused with
Harjit Singh.
6. I have heard learned counsel for the parties and perused the record.
7. The Hon'ble Supreme Court has held in the matter of Guriya @
Tabassum Tauquir and Ors. Vs. State of Bihar 2007(4) RCR (Criminal)
497:2008 AIR(Supreme Court) 95 as follows:-
"13. On a careful reading of Section 319 of the Code as well as the
aforesaid two decisions, it becomes clear that the trial court has
undoubted jurisdiction to add any person not being the accused
before it to face the trial along with other accused persons, if the
Court is satisfied at any stage of the proceeding on the evidence
adduced that the persons who have not been arrayed as accused
should face the trial. It is further evident that such person even
though had initially been named in the F.I.R. as an accused, but
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not charge sheeted, can also be added to face the trial. The trial
court can take such a step to add such persons as accused only on
the basis of evidence adduced before it and not on the basis of
materials available in the charge sheet or the case diary, because
such materials contained in the charge sheet or the case diary do
not constitute evidence. of course, as evident from the decision
reported in Sohan Lal and others v. State of Rajasthan, 1990(3)
RCR (Criminal) 610 the position of an accused who has been
discharged stands on a different footing."
"14. Power under Section 319 of the Code can be exercised by the
Court suo motu or on an application by someone including
accused already before it, if it is satisfied that any person other
than accused has committed an offence and he is to be tried
together with the accused. The power is discretionary and such
discretion must be exercised judicially having regard to the facts
and circumstances of the case. Undisputedly, it is an extraordinary
power which is conferred on the Court and should be used very
sparingly and only if compelling reasons exist for taking action
against a person against whom action had not been taken earlier.
The word "evidence" in Section 319 contemplates evidence of
witnesses given in Court. Under Sub-section (4)(1)(b) of the
aforesaid provision, it is specifically made clear that it will be
presumed that newly added person had been an accused person
when the Court took cognizance of the offence upon which the
inquiry or trial was commenced. That would show that by virtue of
Sub-section (4)(1)(b) a legal fiction is created that cognizance
would be presumed to have been taken so far as newly added
accused is concerned. (See Lok Ram v. Nihal Singh and Anr.,
2006(2) RCR (Criminal) 707 : 2006(2) Apex Criminal 71."
"15. The factual position noted above goes to show that there was
no new material after examination of the accused persons under
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Section 313 Criminal Procedure Code, which threw any light on
the incident. The evidence of PWs 4 and 5 is not the basis of the
application under Section 319 Criminal Procedure Code as they
have not spoken anything about the appellants."
8. The Hon'ble Supreme Court of India has dealt with the issue in
hand in a number of judgments and two of the most celebrated judgements in
this regard are discussed hereinbelow:-
In "Michael Machado and another versus Central Bureau of
Investigation and another, 2000 (3) SCC 262", the Hon'ble Supreme Court of
India held as under:-
"11. The basic requirements for invoking the above section is that
it should appear to the court from the evidence collected during
trial or in the inquiry that some other person, who is not arraigned
as an accused in that case, has committed an offence for which
that person could be tried together with the accused already
arraigned. It is not enough that the court entertained some doubt,
from the evidence, about the involvement of another person in the
offence. In other words, the court must have reasonable
satisfaction from the evidence already collected regarding two
aspects. First is that the other person has committed an offence.
Second is that for such offence that other person could as well be
tried along with the already arraigned accused.
12. But even then, what is conferred on the court is only a
discretion as could be discerned from the words the court may
proceed against such person. The discretionary power so
conferred should be exercised only to achieve criminal justice. It is
not that the court should turn against another person whenever it
comes across evidence connecting that another person also with
the offence. A judicial exercise is called for, keeping a conspectus
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of the case, including the stage at which the trial has proceeded
already and the quantum of evidence collected till then, and also
the amount of time which the court had spent for collecting such
evidence. It must be remembered that there is no compelling duty
on the court to proceed against other persons".
The Hon'ble Supreme Court in 'Manjeet Singh versus State of
Haryana & others, 2021(4) RCR (Criminal) 25', held as under:-
"13. The ratio of the aforesaid decisions on the scope and ambit of
the powers of the Court under section 319 Cr.P.C, 1973 can be
summarized as under:
(i) That while exercising the powers under section 319
Cr.P.C, 1973 and to summon the persons not charge-
sheeted, the entire effort is not to allow the real perpetrator
of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the
criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the
legislature under the CrPC indicating as to how the courts
should proceed to ultimately find out the truth so that the
innocent does not get punished but at the same time, the
guilty are brought to book under the law;
(iv) to discharge duty of the court to find out the real truth
and to ensure that the guilty does not go unpunished;
(v) where the investigating agency for any reason does not
array one of the real culprits as an accused, the court is not
powerless in calling the said accused to face trial;
(vi) section 319 Cr.P.C, 1973 allows the court to proceed
against any person who is not an accused in a case before
it;
(vii) the court is the sole repository of justice and a duty is
cast upon it to uphold the rule of law and, therefore, it will
be inappropriate to deny the existence of such powers with
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the courts in our criminal justice system where it is not
uncommon that the real accused, at times, get away by
manipulating the investigating and/or the prosecuting
agency;
(viii) section 319 Cr.P.C, 1973 is an enabling provision
empowering the court to take appropriate steps for
proceeding against any person not being an accused for also
having committed the offence under trial;
(ix) the power under section 319 (1) CrPC, 1973 can be
exercised at any stage after the charge-sheet is filed and
before the pronouncement of judgment, except during the
stage of Sections 207/208 CrPC, committal, etc. which is
only a pretrial stage intended to put the process into motion;
(x) the court can exercise the power under section 319
Cr.P.C , 1973 only after the trial proceeds and commences
with the recording of the evidence;
(xi) the word "evidence" in section 319 Cr.P.C, 1973 means
only such evidence as is made before the court, in relation to
statements, and as produced before the court, in relation to
documents;
(xii) it is only such evidence that can be taken into account
by the Magistrate or the court to decide whether the power
under section 319 Cr.P.C 1973 is to be exercised and not on
the basis of material collected during the investigation;
(xiii) if the Magistrate/court is convinced even on the basis
of evidence appearing in examination-in-chief, it can
exercise the power under section 319 Cr.P.C, 1973 and can
proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the
basis of evidence appearing in examination-in-chief, powers
under section 319 Cr.P.C, 1973 can be exercised;
(xv) that power under section 319 Cr.P.C, 1973 can be
exercised even at the stage of completion of examination-in-
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chief and the court need not has to wait till the said evidence
is tested on cross-examination;
(xvi) even in a case where the stage of giving opportunity to
the complainant to file a protest petition urging upon the
trial court to summon other persons as well who were
named in FIR but not implicated in the charge-sheet has
gone, in that case also, the Court is still not powerless by
virtue of section 319 Cr.P.C, 1973 and even those persons
named in FIR but not implicated in the charge-sheet can be
summoned to face the trial, provided during the trial some
evidence surfaces against the proposed accused (may be in
the form of examination-in-chief of the prosecution
witnesses);
(xvii) while exercising the powers under section 319 Cr.P.C,
1973 the Court is not required and/or justified in
appreciating the deposition/evidence of the prosecution
witnesses on merits which is required to be done during the
trial".
9. A perusal of Section 319 Cr.P.C. as also the judgment in Michael
Machado case's (supra) and Manjeet Singh's case (supra) would clearly show
that the Court has wide powers to summon a person as an additional accused
who has been exonerated by the Investigating Agency, if it finds that there is
sufficient evidence available against the said person in order to try him along
with the other accused already facing trial. However, there is no compelling
duty upon Court to summon an accused. The discretionary power so conferred
should only be exercised to achieve justice and must be based on the quality of
evidence collected. In fact, the Court being the sole repository of justice, there
is a duty cast upon it to uphold the law and ensure that the real accused should
not get away by manipulating the Investigating Agency/Prosecuting Agency.
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What the Court needs to examine while adjudicating upon an application under
Section 319 Cr.P.C. is that there should be evidence available on the file in the
shape of oral evidence or documentary evidence in order to invoke its powers to
summon an additional accused under Section 319 Cr.P.C.
10. In the present case also, from a perusal of the complaint filed by
respondent No.2, it is apparent that no allegations was levelled against the
present petitioner that he had ever received any money from Ranjit Singh,
complainant or had made any false assurance to him. Even the land was sold by
the complainant side with the help of Harjit Singh and the assurance to get a
bigger parcel of land was also made by Harjit Singh only. After all the
transactions had taken place, the presence of petitioner was shown at the house
of Harjit Singh and it was alleged that the petitioner had taken the bounced
cheque and memos from Harjit Singh and handed over the same to his wife
Paramjit Kaur. In the present case, Harjit Singh is already facing the trial. Thus,
at this stage, sufficient evidence was not available before the Trial Court for
summoning the present petitioner.
11. In view of the above discussion, the present petition is allowed and
the impugned order dated 28.04.2022 (Annexure P-7) passed by the Court of
Judicial Magistrate Ist Class, Samrala, is hereby ordered to be quashed.
(N.S.SHEKHAWAT)
18.03.2024 JUDGE
hitesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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