Criminal Misc. No. M-26247 of 2009 v. The State of Punjab

Judgment

2. Versus The State of Punjab. Jagnandan Singh s/o Gurdev Singh, r/o village Manwala, Tehsil Dhuri, District Sangrur. ...Respondents

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. J.S. Bedi, Advocate, for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 1 – State. Mr. G.S. Sidhu, Advocate, for respondent No. 2. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the order dated 12.09.09, rendered by the Court of Sessions Judge, Sangrur (Annexure P5), vide which, the applications, moved by the petitioner, for reframing of charges as also for affording an opportunity of cross-examination, pursuant to an order of summoning, under Section 319 Cr.P.C., were dismissed, has been filed by the petitioner. Criminal Misc. No. M-26247 of 2009 2

2. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

3. The Counsel for the petitioner, submitted that, originally the petitioner and one Inderjit Singh, were not challaned, as accused, and their names were kept in column No. 2. He further submitted that, thereafter, an application, under Section 319 Cr.P.C., was moved, by the prosecution, as a result whereof, the petitioner and Inderjit Singh, were summoned, as additional accused, to face trial. He further submitted that, thereafter, two revision-petitions, were filed, against the order of the trial Court, summoning the petitioner and his co-accused. He further submitted that, in those proceedings, initially, the trial Court, was directed to fix the case beyond a particular date, and, ultimately, the order of stay was vacated on

06.10.05. He further submitted that fresh charges, were framed, on

03.12.05. He further submitted that, vide order dated 16.02.06, the order of the trial Court, was set aside, and the case, was remanded with a direction to it, to decide the matter afresh. He further submitted that, even the charge, which was framed, against the petitioner and his co-accused, was set aside, by this Court. He further submitted that, on 16.02.06, the petitioner, was no longer an accused, and, as such, cross-examination by his Counsel, under the directions of the Court, could not be said to be the cross- examination, on behalf of the petitioner, as an accused. He further submitted that, thereafter, the application, under Section 319 Cr.P.C., was dismissed, by the trial Court. He further submitted that two Criminal Misc. No. M-26247 of 2009 3 revision-petitions, were filed, by the prosecution. He further submitted that the revision-petition, qua the petitioner, was accepted and qua Inderjit Singh was dismissed. He further submitted that, thereafter, two applications, were moved by the petitioner, that the charge be reframed and the evidence be recorded de-novo, but the trial Court, dismissed those applications. He further submitted that the order impugned, being illegal, is liable to be quashed.

4. On the other hand, the Counsel for the respondents, submitted that, on 16.02.06, the petitioner, did not bring to the notice of the Court, that the order, summoning him, had already been set aside, by this Court. They further submitted that the petitioner, voluntarily participated, in the trial, and his Counsel of his own accord cross-examined the witnesses. They further submitted that thorough cross-examination of the witnesses, was conducted, by the Counsel for the petitioner. They further submitted that Hardev Singh, PW7, has since demised. They further submitted that since the cross- examination of the witnesses, was conducted, by the Counsel for the petitioner, and no objection was taken, neither the charge, can be reframed, nor the trial, can be held de-novo qua the petitioner. They further submitted that the order, passed by the trial Court, being legal and valid, is not liable to be quashed.

5. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. No doubt, the petitioner, was not challaned, as Criminal Misc. No. M-26247 of 2009 4 an accused originally, and his name, was kept, in column No. 2. In pursuance of the application, under Section 319 Cr.P.C., he was summoned, as an additional accused. Against that order, he filed a revision-petition, in which, originally there was stay order, but ultimately, the same, was vacated, as a result whereof, charge was framed, against the petitioner also. However, the revision-petition, was accepted, on 16.02.06, and the order of the trial Court, was set aside. The case was remanded, to the trial Court, for fresh decision of the applications. Even the charge, which was framed, against the petitioner, in the meantime, by the trial Court, was set aside, vide order dated 16.02.06. It means that, on 16.02.06, the petitioner, was not an accused. The mere fact, that his Counsel cross-examined the witnesses, on 16.02.06, did not mean, that the petitioner, was an accused. The trial Court, after remand, dismissed the application under Section 319 Cr.P.C. Against that order revision-petition was filed by the prosecution, which was accepted by this Court, qua the petitioner and then, in the real sense, he became an accused, in this case. Under these circumstances, keeping in view the provisions of Section 319(4) Cr.P.C., de-novo trial, was required to be held against the petitioner, after reframing the charge. Similar principle of law was laid down, in Shashi Kant Singh Vs. Tarkeshwar Singh (AIR 2002, SC, 2031). Whether the petitioner, brought to the notice of the Court, that on 16.02.06, the order, vide which, he was summoned, as an additional accused, by the trial Court, had been set aside, or not, was hardly of any consequence. The order, declining Criminal Misc. No. M-26247 of 2009 5 the applications, for reframing of charge and holding de-novo trial, qua the petitioner, suffers from illegality and perversity. The same is, thus, liable to be quashed.

6. For the reasons recorded above, the petition, under Section 482 Cr.P.C., is accepted. The order dated 12.09.09, is quashed. The trial Court, is directed, to reframe the charge, against the petitioner, and hold de-novo trial, against him, by summoning the witnesses for evidence, so far as the petitioner, is concerned.

7. It is further made clear that, since Hardev Singh, PW7, has already demised, it would for the trial Court, to decide, at the time of final decision of the case, as to whether, his evidence, was legally admissible, against the petitioner, or not.

8. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

02.03.2010 Amodh (SHAM SUNDER) JUDGE