Criminal Revision No. 2356 of 2007 · Punjab And Haryana High Court · 2010

Ms. Shalini Attri, Deputy Advocate General, Haryana for respondent No.7. T.P.S. MANN, J. The instant revision is directed against the order passed by Additional Sessions Judge (Fast Track Court), Kurukshetra on 7.8.2008 whereby the application filed by the prosecution under Section 319 Cr.P.C. for summoning respondents No.1 to 6 for being tried as accused alongwith four others, who were already before the Court, was dismissed. The facts giving rise to the application under Section 319 Cr.P.C. were that on 27.3.2006, FIR No.102 was registered at Police Station, Shahabad on the basis of statement of Karambir, which Criminal Revision No.2356 of 2007 -2- statement was found to be false during investigation and on the basis of a statement made by injured Karam Chand, investigation was taken up against Jasbir Singh, Vinod Kumar and Krishan Kumar, who were sent up for trial. Later on, charges were framed against them. Subsequently, supplementary challan was presented against aforementioned Karambir and charges were re-framed on 20.11.2006 against all four of them for offences under Sections 323, 324, 326, 307 and 506 IPC read with Section 34 IPC. The prosecution then examined complainant-Ramesh Chand as PW1, wherein he reiterated his earlier version given to the police in which he had named respondents No. 1 to 6 also as accused alongwith Jasbir Singh, Vinod Kumar, Krishan Kumar and Karambir. After his examination-in-chief, learned Public Prosecutor filed an application under Section 319 Cr.P.C. for summoning respondents No.1 to 6 as additional accused. Though the accused who were already before the Court were given opportunity to cross-examine PW1 Ramesh Chand and some cross-examination was done but then it was stated by the defence counsel that the accused did not want to disclose their defence at that stage and they be allowed to reserve the right to cross- examine the said witness further after decision of the application filed by the prosecution under Section 319 Cr.P.C. In view of their request, further cross-examination of PW1 Ramesh Chand was deferred. The trial Court declined the application of the prosecution to summon respondents No. 1 to 6 as additional accused on the ground that they were found innocent by the police and placed in column No.2 Criminal Revision No.2356 of 2007 -3- of the challan. Moreover, whatever had been stated by PW1 Ramesh Chand before the Court was reiteration of the allegations levelled by him during the investigation and the same having been considered by the police, such evidence before the Court could not be considered as additional evidence to summon respondents No. 1 to 6 as additional accused. The trial Court relied upon a judgment of this Court in Hukam Chand and another v. State of Haryana and another, 2007 (3) RCR (Criminal) 141, while declining request of the prosecution under Section 319 Cr.P.C. by holding that the statement of complainant was recorded during the investigation and while making statement in the Court he reiterated those very allegations and once such an evidence had already been considered by the police before presenting the challan, the same could not be considered as additional evidence for summoning respondents No. 1 to 6. In Y. Saraba Reddy v. Puthur Rami Reddy and another, (2007) 4 SCC 773, the Hon'ble Supreme Court had held that the trial Court had the jurisdiction to add any person as accused at any stage of proceedings on the evidence adduced that the persons who had not been arrayed as accused should face the trial. The trial Court could take such a step only on the basis of evidence adduced before it and not on the basis of materials available in charge sheet or the case diary because such materials contained in the charge sheet or the case diary did not Criminal Revision No.2356 of 2007 -4- constitute evidence. The “evidence” in Section 319 Cr.P.C. contemplates that evidence of witnesses which is given by them in the Court. Therefore, whatever was stated by the witnesses during the investigation cannot be framed as evidence of a fact. Moreover, on the basis of the material collected during the investigation, the investigation officer was justified in not presenting the final report against some of the accused, who, according to him, were innocent. However, the satisfaction of the investigating officer, if treated as determinative, the very purpose of Section 319 of the Code would be frustrated. Similarly, in Rajendra Singh v. State of U.P. and another, 2007 (3) RCR (Criminal) 1021, the Hon’ble Supreme Court held that Section 319 Cr.P.C. gives power to the Court to ensure that justice is done by bringing to book all those guilty of an offence and ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt and there is also duty to render justice to the victim of the offence. In his statement, made as PW1 before the trial Court, copy of which has been attached as Annexure P2, Ramesh Chand had stated as follows regarding the involvement of the four accused who were already before the Court as well as of respondents No. 1 to 6 who were sought to be summoned as additional accused under Section 319 Cr.P.C:- “I stopped the car. 8/10 persons came out from one side. They were Jasbir Singh armed with a Criminal Revision No.2356 of 2007 -5- revolver, Karambir armed with a sword. Krishan armed with an iron rod, Gurmail armed with an iron rod, Sham Singh also armed with an iron rod, Gian Chand holding an iron rod, Gurdial son of Pala Ram armed with a Danda, Batwa son of Raj Kumar were among them apart from 3/4 other persons whom I could not identify at that moment. Later on I came to know that those 3/4 persons were Vinod alias Salma r/o Dera Tandwal and Raju were those persons. Accused Jasbir, Karambir, Krishan and Vinod are present in the dock of this Court. Jasbir accused caught hold of my collar and dragged me out of the car. Karambir aimed sword blow on my head and I tried to ward it of with my hand and I received the blow on my left hand in that process. Krishan gave blow with iron rod on my back. All the accused gave me injuries with their respective weapons.” It is, thus, clear that Gurmail Singh, Shyama and Gian Chand, respondents No. 1 to 3 armed with an iron rod each, Gurdial respondent No.4 with a danda, Batwa respondent No.5 and Raju respondent No.6 were present alongwith Jasbir Singh, Karambir, Krishan Kumar and Vinod Kumar- accused at the time of the occurrence in question. It was also stated by PW1 Ramesh Chand that all the accused had given him injuries with their respective weapons. In view of the same, what was alleged by the petitioner as PW1 before the trial Court would satisfy the tests of standard as laid down by the Hon’ble Supreme Court for summoning respondents No.1 to 6 as additional Criminal Revision No.2356 of 2007 -6- accused. In Hukam Chand's case (supra) there was no indication if there was any direct allegations against the petitioners therein who were sought to be summoned as is in the case of respondents No.1 to 6 herein and, thus, the ratio of the said case may not apply to the facts and circumstances of the present case. In view of the above, the impugned order passed by the trial Court in declining request of the prosecution to summon respondents No. 1 to 6 as additional accused cannot be sustained. Resultantly, the revision is accepted, impugned order is set aside and the application filed by the prosecution under Section 319 Cr.P.C. for summoning respondents No. 1 to 6 as additional accused is allowed. The trial Court shall summon respondents No. 1 to 6 as additional accused and proceed against them, in accordance with law. However, nothing stated above shall be taken as an expression on the merits of the case. The final judgment by the trial Court shall be on the basis of the evidence to be brought by the prosecution and the defence on the file. August 17, 2010 satish ( T.P.S.MANN ) JUDGE