Punjab-Haryana High Court
Harbans Singh vs State Of Punjab And Another on 22 November, 2024
Neutral Citation No:=2024:PHHC:153742
CRR-413-2020 - 1-.
252 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-413-2020
Date of Reserve:18.07.2024
Date of Decision:22.11.2024
Harbans Singh ...Petitioner
Vs.
State of Punjab and Anr. ...Respondents
Coram : Hon'ble Mr. Justice N.S.Shekhawat
Present: Ms. Sushma Chopra, Advocate
for the petitioner.
Mr. Deepinder Singh Brar,Sr. DAG, Punjab.
***
N.S.Shekhawat J.
1. The petitioner has filed the present revision petition against the
impugned order dated 17.01.2020, passed by the Court of Judicial Magistrate
Ist Class, Ludhiana, whereby the petitioner was summoned under the provisions
of Section 319 Cr.P.C to face trial along with the other accused.
2. The FIR in the present case was registered on the basis of the
statement made by Paramjit Singh son of Natha Singh and the same has been
reproduced below:-
"At this time one complaint No. CR No.-13677DR No.7412, dated
30.10.12 has been received from Commissioner Officer, Police,
Ludhiana to the DSP. Sir, Ludhiana (Area Division No.3, Ludhiana).
Subject: Related to the shop No.55, Guru Nanak Market, Hazuri
Road, Ludhiana. Respected Sir, it is requested that our property
V/5/428 situated at Hazuri Road, Ludhiana owned by Rajinder Singh,
Surinder Singh, Jagdev Singh and Paramjit Singh, all are sons of
Natha Singh. In this property, there is one shop No.55, which was
lying vacant for the last 7-8 years and its electricity meter was also
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disconnected by the electricity board. The shop was lying vacant
since the Indian Acrelic Ltd. left the shop. The possession of this shop
was with the four brothers, but I have quarrelled with three brothers
from the last sometime. Rajinder Singh, Surinder Singh and Jagdev
Singh, all sons of Natha Singh have rented out this shop to one
Chhole Bhature Wala Dilawar Singh son of Phuman Singh without
my consent and they have also taken Rs.8 lacs Salami Pagri at the
market price. The shop was rented out without my consent and I have
come to know about this when Dilawar Singh unlocked the shop and
took the possession when I asked him why he is opening the shop then
he threatened me by saying that Rajinder Singh, Surinder Singh and
Jagdev Singh are with me, you can do whatever you want to do. When
I asked Rajinder Singh, Surinder Singh and Jagdev Singh why they
gave this shop on rent without his consent, then they accompany with
Harbans Singh son of Rajinder Singh, Harjinder Singh son of
Surinder Singh and Dilawar Singh son of Phuman Singh abused me
and pushed me out by saying that you do what you can do, we have
rented it out and if you will fight with us then you will be in difficulty
and you will have to pay the cost for this. Respected Sir, I
apprehended that they can kill me. Kindly take necessary steps on my
complaint and the possession of the shop will be given to me. I shall
be highly thankful to you. Sd/ Paramjit Singh son of Natha Singh,
resident of B-5/471, Hazuri Road, Ludhiana, Mobile No.9569532004.
3. Learned counsel for the petitioner contends that in the present case,
the police had conducted the investigation in detail and he was found innocent.
During the course of evidence, the respondent himself appeared as a witness,
who did not state a single word against the petitioner. Still further, two more
eye witnesses Sita Ram (PW-5) and Tilak Raj (PW-6) were examined, but they
also turned hostile and did not state a word against the petitioner. Still further,
the petitioner was wrongly summoned by the Trial Court.
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4. Learned counsel for the petitioner further contends that the
complainant and accused are closely related to each other and are part of the
same family. In fact, four brothers were running a company together, having its
registered office at Ludhiana. In the year 2014, some differences had arisen
between the parties and the company petitions were filed by the respondent
No.2, his wife and his son. However, the parties had entered into a compromise
and the company petitions were withdrawn by respondent No.2. Learned
counsel further contends that the application under Section 319 Cr.P.C has been
wrongly allowed by the Trial Court.
5. On the other hand, learned State counsel has vehemently argued
that the impugned order is legally sustainable and has been passed by taking
into account the evidence led by the parties. Even there was sufficient evidence
to summon the petitioner as an additional accused and the present petition
deserves to be dismissed by this Court.
6. I have heard the rival contentions made by learned counsel for the
parties and perused the record carefully.
7. Before proceeding further, it would be appropriate to reproduce the
provisions contained in Section 319 Cr.P.C, which read as under:-
Section 319 Cr.P.C, reads as under:-
"319. Power to proceed against other persons appearing to be
guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence,
it appears from the evidence that any person not being the accused
has committed any offence for which such person could be tried
together with the accused, the Court may proceed against such
person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be
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arrested or summoned, as the circumstances of the case may
require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or
upon a summons, may be detained by such Court for the purpose
of the inquiry into, or trial of, the offence which he appears to have
committed.
(4) Where the Court proceeds against any person under sub-
section (1), then-
(a) the proceedings in respect of such person shall be commenced
a fresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as
if such person had been an accused person when the Court took
cognizance of the offence upon which the inquiry or trial was
commenced."
8. Still further, while discussing the powers of the Court under
Section 319 Cr.P.C to face trial along with the other co-accused, was discussed
by the Hon'ble Supreme Court in the matter of "Sukhpal Singh Khaira Vs.
State of Punjab 2023(1)SCC 289 held as follows:-
31. In analysing the issue and making the above conclusion on all
aspects, we are also persuaded by the view taken by this Court,
among others, in the case of Rajendra Singh v. State of U.P. and
Another (2007) 7 SCC 378 wherein it is concluded with regard to
the object of section 319 of CrPC, 1973 as hereunder:-
"20. The power under Section 319 of the Code is conferred on
the court to ensure that justice is done to the society by
bringing to book all those guilty of an offence. One of the aims
and purposes of the criminal justice system is to maintain social
order. It is necessary in that context to ensure that no one who
appears to be guilty escapes a proper trial in relation to that
guilt. There is also a duty to render justice to the victim of the
offence. It is in recognition of this that the Code has specifically
conferred a power on the court to proceed against others not
arrayed as accused in the circumstances set out by this section.
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It is a salutary power enabling the discharge of a court's
obligation to the society to bring to book all those guilty of a
crime.
21. Exercise of power under Section 319 of the Code, in my
view, is left to the court trying the offence based on the evidence
that comes before it. The court must be satisfied of the
condition precedent for the exercise of power under Section 319
of the Code. There is no reason to assume that a court trained
in law would not exercise the power within the confines of the
provision and decide whether it may proceed against such
person or not. There is no rationale in fettering that power and
the discretion, either by calling it extraordinary or by stating
that it will be exercised only in exceptional circumstances. It is
intended to be used when the occasion envisaged by the section
arises."
"32.We have also kept in view the point by point analysis of the
object and power to be exercised under Section 319 of CrPC, as
has been indicated in para 34 of Manjit Singh vs. State of Haryana
and Others (2021) SCC Online SC 632."
33. For all the reasons stated above, we answer the questions
referred as hereunder:-
"I. Whether the trial court has the power under section 319 of
CrPC, 1973 for summoning additional accused when the trial with
respect to other co-accused has ended and the judgment of
conviction rendered on the same date before pronouncing the
summoning order?
The power under section 319 of CrPC, 1973 is to be invoked
and exercised before the pronouncement of the order of
sentence where there is a judgment of conviction of the
accused. In the case of acquittal, the power should be exercised
before the order of acquittal is pronounced. Hence, the
summoning order has to precede the conclusion of trial by
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imposition of sentence in the case of conviction. If the order is
passed on the same day, it will have to be examined on the facts
and circumstances of each case and if such summoning order is
passed either after the order of acquittal or imposing sentence
in the case of conviction, the same will not be sustainable.
II. Whether the trial court has the power under section 319 of the
CrPC, 1973 for summoning additional accused when the trial in
respect of certain other absconding accused (whose presence is
subsequently secured) is ongoing/pending, having been bifurcated
from the main trial?
The trial court has the power to summon additional accused
when the trial is proceeded in respect of the absconding
accused after securing his presence, subject to the evidence
recorded in the split up (bifurcated) trial pointing to the
involvement of the accused sought to be summoned. But the
evidence recorded in the main concluded trial cannot be the
basis of the summoning order if such power has not been
exercised in the main trial till its conclusion.
III. What are the guidelines that the competent court must follow
while exercising power under section 319 CrPC, 1973?"
(i) If the competent court finds evidence or if application
under section 319 of CrPC, 1973 is filed regarding
involvement of any other person in committing the offence
based on evidence recorded at any stage in the trial before
passing of the order on acquittal or sentence, it shall pause
the trial at that stage.
(ii) The Court shall thereupon first decide the need or
otherwise to summon the additional accused and pass orders
thereon.
(iii) If the decision of the court is to exercise the power under
section 319 of CrPC, 1973 and summon the accused, such
summoning order shall be passed before proceeding further
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with the trial in the main case.
(iv) If the summoning order of additional accused is passed,
depending on the stage at which it is passed, the Court shall
also apply its mind to the fact as to whether such summoned
accused is to be tried along with the other accused or
separately.
(v) If the decision is for joint trial, the fresh trial shall be
commenced only after securing the presence of the summoned
accused.
(vi) If the decision is that the summoned accused can be tried
separately, on such order being made, there will be no
impediment for the Court to continue and conclude the trial
against the accused who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case
where the accused who were tried are to be acquitted and the
decision is that the summoned accused can be tried afresh
separately, there will be no impediment to pass the judgment
of acquittal in the main case.
(viii) If the power is not invoked or exercised in the main trial
till its conclusion and if there is a split-up (bifurcated) case,
the power under section 319 of CrPC, 1973 can be invoked or
exercised only if there is evidence to that effect, pointing to
the involvement of the additional accused to be summoned in
the split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for
judgment the occasion arises for the Court to invoke and
exercise the power under section 319 of CrPC, 1973 the
appropriate course for the Court is to set it down for re-
hearing.
(x) On setting it down for re-hearing, the above laid down
procedure to decide about summoning; holding of joint trial
or otherwise shall be decided and proceeded with
accordingly.
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(xi) Even in such a case, at that stage, if the decision is to
summon additional accused and hold a joint trial the trial
shall be conducted afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a separate
trial in case of the summoned accused as indicated earlier;
(a) The main case may be decided by pronouncing the conviction
and sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect
in the main case and then proceed afresh against summoned
accused.
9. In the present case also, the prosecution had examined respondent
No.2 as a witness against the petitioner. However, the respondent No.2 himself
had not uttered even a single word against the present petitioner. Further more,
the alleged eye witnesses of the occurrence, Sita Ram (PW-5) and Tilak Raj
(PW-6) had turned hostile in the present case and did not even named the
petitioner as an accused in the present case. Still, the Court had wrongly
summoned the present petitioner. Still further, the company was being run by
some other person and the petitioner was wrongly summoned.
10. Still further, even while deciding the application in question, the
Trial Court wrongly held that no plausible explanation had been given as to
what was the reason for not joining the accused Harbans Singh, petitioner and
the said findings is apparently wrong. While deciding an application under
Section 319 Cr.P.C., the Court was to weigh the evidence to ascertain as to
whether the petitioner was liable to be summoned under Section 319 of Cr.P.C
or not. Even, the powers under Section 319 Cr.P.C., indicates that the power
conferred on the Court to summon any person, who is not an accused in the
case, appears from the evidence that such person has a role in committing the
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crime. Even such power has to be exercised at the earliest available
opportunity. In the present case, instead of discussing the prosecution evidence,
the Trial Court proceeded on the assumption that the petitioner was wrongly
kept in column No.2 by the police. Thus, approach of the Trial Court in disposal
of the application was wrong and the impugned order is liable to be set aside by
this Court.
11. In view of the above discussion, the present petition is allowed and
the impugned order dated 17.01.2020, passed by the Court of Judicial
Magistrate Ist Class, Ludhiana is ordered to be set aside and the application
under Section 319 Cr.P.C., is ordered to be dismissed.
(N.S.SHEKHAWAT)
22.11.2024 JUDGE
hitesh Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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