Jhoney Bhardwaj @ Kala v. State of Punjab & Ors.

Present Mr. K.K. Goel, Advocate, for the petitioner. Mr. Amit Chaudhary, D. A.G., Punjab, for the State. Mr. J.K.Singla, Advocate, for respondent No.3. VIJENDER SINGH MALIK, J. Jhoney Bhardwaj alias Kala, the petitioner has brought this petition under the provisions of section 482 Cr.P.C. for quashing the order dated 9.5.2011 (Annexure P1), passed by learned Additional Sessions Judge, Patiala. Vide the impugned order, learned Additional Sessions Judge, Patiala has accepted the revision petition filed by respondents No. 2 and 3 for setting aside the order dated 15.7.2009 passed by learned Judicial Magistrate Ist Class, Nabha. Vide the order dated

15.7.2009 passed by learned Judicial Magistrate Ist Class, Nabha, the application of respondents No. 2 and 3 for summoning the petitioner as Crl. Misc. No.M-20507 of 2011 2 .. additional accused, under the provisions of section 319 Cr.P.C., has been dismissed. In a case registered by way of FIR No.75 dated 13.6.2007 at Police Station Sadar, Nabha, District Patiala for an offence punishable under sections 341, 323, 324 read with section 34 and section 452 of Indian Penal Code, allegations had been levelled against Laxmi Devi, Kishan Pal and Kala. The police filed challan against Laxmi Devi and Kishan Pal and kept the name of the petitioner, Jhoney Bhardwaj alias Kala in column No. 2 of the challan. After examination of Tara Rani and Ravinder Kumar as PW-2 and PW-3 respectively, the prosecution applied under section 319 Cr.P.C. for summoning of the petitioner, Jhoney Bhardwaj alias Kala as accused. Vide order dated 15.7.2009, learned Judicial Magistrate Ist Class, Nabha dismissed the application observing that there is no cogent evidence on record to ensure that the accused, sought to be summoned, will be convicted in all probability. Tara Rani and Ravinder Kumar, respondents No. 2 and 3 herein, filed a revision petition against the said order and learned Additional Sessions Judge, Patiala vide order dated 9.5.2011 accepted the revision petition and set- aside the order of the Magistrate and, consequently, summoned Jhoney Bhardwaj alias Kala, the petitioner to stand trial as an accused in this case. The facts of this case are not in a very broad compass. They can be briefly put and they are that Ravinder Kumar was returning home on 12.6.2007 at about 3.30 PM after giving his land on lease. He was attacked on his way near his house by Laxmi Devi, his own mother, who was armed with soti, Kishan Pal, his brother armed with a kirch and Crl. Misc. No.M-20507 of 2011 3 .. accused Kala, brother-in-law of Kishan Pal armed with a soti. They had declared at the time of occurrence that they would teach a lesson to Ravinder Kumar for giving his land on lease. Kishan Pal is said to have given a kirch blow which was received by Ravinder Kumar on his right hand which he raised in order to save himself from the blow. Kala gave him soti blow on his right shoulder and Laxmi Devi gave a soti blow on the right side of his back. Thereafter, the accused dragged him inside his house where Tara Rani, his wife tried to save him and the accused gave beating to Tara Rani also. Kala had again hit Ravinder Kumar with his soti on left shoulder and Laxmi Devi also gave him another blow. Karan Pal then put his shirt around his neck and Laxmi Devi gave a soti blow on his left arm. Kala is said to have given another blow with soti on the right side of his shoulder and Kishan Pal gave a blow with reverse side of kirch on his head. The alarm raised by Ravinder Kumar and his wife made the accused go away. Learned counsel for the petitioner has invited my attention to the concluding observations of learned Judicial Magistrate Ist Class, Nabha and has submitted his observations are quite legal and valid. According to him, learned Additional Sessions Judge has fallen in error in finding the lower court to have erred in dismissing the application under section 319 Cr.P.C. According to him, the observations of learned Additional Sessions Judge that there was no necessity to minutely appreciate the testimony of the complainant and other witnesses and that the broad outlay of the version of the prosecution given in the report under section 173 Cr.P.C. and documents annexed therewith and the testimony of the complainant speaks about the role of Jhoney Bhardwaj Crl. Misc. No.M-20507 of 2011 4 .. alias Kala, is not supported by law. He has placed reliance in this regard on a decision of Hon`ble Supreme Court in Sarabjit Singh and another Vs. State of Punjab and another (2009) 16 Supreme Court Cases 46, where it is laid down that the power under section 319 Cr.P.C. is an extra ordinary power which is required to be exercised sparingly and for compelling reasons. It is also laid down in this decision that courts are required to apply stringent tests to see if the power under section 319 Cr.P.C. is to be exercised or not and one of the tests is whether the evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. It is also laid down in this decision that mere existence of a prima facie case may not serve the purpose. Learned State counsel assisted by learned counsel for the complainant has submitted, on the other hand, that the evidence of Ravinder Kumar and Tara Rani is sufficient to make out a case for summoning the petitioner. According to him, though prima facie case itself may not be sufficient to exercise the power under section 319 Cr.P.C., yet the evidence as its stands without there being any evidence to rebut the same, must be shown sufficient to warrant conviction of the person sought to be summoned and in the case in hand, the evidence of Ravinder Kumar and Tara Rani satisfies this test. According to him, the order passed by learned Additional Sessions Judge is legal and valid and does not call for any interference. Though, the petitioner is described in the FIR as Kala, yet no exception is taken at the time of arguments to his description as such. There is, therefore, no dispute as to the identity of the petitioner as the Crl. Misc. No.M-20507 of 2011 5 .. person named as Kala in the FIR. Kala is said to have accompanied Laxmi Devi and Kishan Pal. All the three are said to have been armed with weapons and there are specific allegations that Kala had given blows with his soti to the complainant Ravinder Kumar and his wife Tara Rani. Appearing as PW-2 and PW-3 respectively, Tara Rani and Ravinder Kumar have stated their case on oath. The requirement of law is that the evidence as it is before the court while considering the application under section 319 Cr.P.C. should be sufficient to warrant conviction of the person sought to be summoned. The court is not to see any possible defence that may be put up by the person sought to be summoned in due course of trial. What is to be considered is not the possible defence that may be put up by that person but the evidence which has come before the court at the stage of considering the application under section 319 Cr.P.C. In the case in hand, learned Judicial Magistrate Ist Class has erred in observing that there is no cogent evidence on record to ensure that the accused sought to be summoned will be convicted in all probability. The expression “in all probability” takes into consideration the possible defence that may be put up by the accused which is not there before the court at the stage of exercising the power under section 319 Cr.P.C. Considering the evidence of Tara Rani and Ravinder Kumar, there appears clear evidence against the petitioner, Jhoney Bhardwaj alias Kala of his having participated in the occurrence and having given blows to Ravinder Kumar and his wife. If this evidence is not shaken or rebutted by leading any evidence in rebuttal, it will certainly lead to the conviction of the petitioner and this is sufficient for exercising power under section Crl. Misc. No.M-20507 of 2011 6 .. 319 Cr.P.C. In these circumstances, learned Additional Sessions Judge, Patiala has been right in accepting the revision petition and setting aside the order dated 15.7.2009 (Annexure P2). Consequently, I find no ground to interfere with the order passed by learned Additional Sessions Judge, Patiala, dated 9.5.2011 (Annexure P1). The petition is, consequently, dismissed. December 19th, 2012 (VIJENDER SINGH MALIK) JUDGE