Delhi High Court
Karnail Singh Cheema vs State & Anr. on 9 December, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.12.2024
+ CRL.M.C. 3431/2019 & CRL.M.A. 31310/2019
KARNAIL SINGH CHEEMA .....Petitioner
versus
STATE & ANR. .....Respondents
+ CRL.M.C. 3509/2019
SARABJEET SINGH .....Petitioner
versus
STATE & ANR. .....Respondents
Advocates who appeared in this case:
For the Petitioner(s) : Mr. Ajay Verma, Mr. Vaishnav
Kirti Singh, Ms. Katyayini &
Mr. Krishna Sharma, Advocates.
For the Respondents : Mr. Sunil Kumar Gautam, APP
for the State with Mr. Praveen
Kumar, Mr. Bhuman Bansal, Mr.
Yashvinder Malik, Mr. Vincent
Lakra, Mr. Ajay, Mr. Vikas
Tyagi & Ms. Meenakshi Tyagi,
Advocates.
Mr. Sumeet Verma, Advocate
for R-2 (Amicus Curiae)
(Through V.C.).
SI Anil Kumar (P.S. Crime
Branch).
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CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petitions are filed challenging the order dated
13.05.2019 (hereafter ‘impugned order’) passed by the learned
Additional Sessions Judge (‘ASJ’), Rohini Courts, Delhi in CR
No. 57326/2016 titled State v. Sikander &Ors.
2. By the impugned order, the learned ASJ ordered the
petitioners to be summoned as accused persons under Section
319 of the Code of Criminal Procedure, 1973 (‘CrPC‘) in FIR
No. 273/1989 for offences under Sections
120B/147/148/149/323/325/427/447/506 of the Indian Penal
Code, 1860 (‘IPC‘) for which the other accused persons namely
Sikander Singh, Lakhpat Rai and V.K. Ghai had been charged.
3. The FIR in the present case was registered on a complaint
given by Ashok Sehgal. It is alleged that on 19.08.1989, the
petitioner K.S. Cheema, along with accused persons – Lakhpat
Rai, V.K. Ghai and Sikander Singh and some other persons
entered in the factory of the complainant in which the
complainant along with his friend one Pradeep Arora were
sleeping. It is alleged that thereafter the accused persons not only
gave beatings to the complainant and his friend but also abducted
them in their car, and confined them in Room Nos. 302 and 300
of some hotel.
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4. It is alleged that thereafter, on the night of 20.08.1989, all
the accused persons took the complainant and his friend to some
farm house and kept them there till the evening of 21.08.1989.
Subsequently, it is alleged that the accused persons released the
complainant and his friend, after threatening them of dire
consequences should they decide to make any complaint to the
police or get themselves medically examined.
5. It is alleged that in the meanwhile, the associates of the
accused persons also caused damage to the factory of the
complainant. It is alleged that the associates of the accused
persons cut the iron pole of the factory by gas cutter machine,
demolished the sheds, and also took away two electricity meters,
drill machines, grinding machines, two welding machines, one
compressor, and other articles. It is further alleged that the
accused persons took forcible possession of Plot No. A-4 to A-6.
6. A suit seeking permanent injunction in respect of the
disputed property was filed by the complainant. The said suit was
dismissed vide order dated 19.02.1990 on the ground of
compromise between the parties. In terms of the settlement, the
possession of the disputed premises had been handed over by the
complainant to the other accused persons being – Sikander
Singh, Vinod Kumar, Hardev Singh, Iqbal Singh. A duly sworn
affidavit dated 08.03.1990 by the complainant was also placed on
record. As per paragraph 3 of the affidavit, the names of the
petitioners were wrongly mentioned. It further materialised that
the petitioners were not involved in the criminal case.
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7. The learned Metropolitan Magistrate (‘MM’) vide order
dated 28.08.1993 discharged the petitioners. In respect of the
petitioner – Sarabjeet Singh, the learned MM noted that there
existed no evidence to implicate Sarabjeet Singh.
8. In respect of the petitioner – K S Cheema, it was argued
that the petitioner, then DSP in CRPF, was posted at Central
Basket Ball Team, CRPF and that in the period between
15.05.1989 to 25.08.1989, the petitioner K S Cheema had not
availed any kind of leave. A certificate to that effect duly signed
by the Assistant Director had also been placed on record. Further,
reliance was also placed on a duly attested affidavit dated
08.03.1990 by the complainant stating that the petitioners were
not involved in the case and their names were wrongly
mentioned. In the light of the same, the petitioner K S Cheema
was also discharged.
9. Subsequently, the other accused persons namely Vinod
Ghai, and Sikander Singh challenged the order dated 28.08.1993
passed by the learned MM whereby the petitioners were
discharged thereby contending that they too were similarly
placed as the petitioners in the present case, and should also have
been discharged. The learned ASJ, while dismissing the revision
petitions preferred by accused Vinod Ghai, and Sikander Singh,
vide order dated 01.05.1997, noted that the other accused persons
were not similarly placed as the petitioners. It was noted further
that the prosecution had failed to challenge the order dated
28.08.1993 whereby the petitioners were discharged, and the
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same had attained finality.
10. Subsequently, an application was moved by the
complainant under Section 340 of the CrPC for prosecuting the
petitioners who were discharged. It was the case of the
complainant that the lines at the end of paragraph 3 of the
affidavit dated 08.03.1990 stating that the petitioners were not
involved in the criminal case, and that their names were wrongly
mentioned were fraudulently added.
11. The learned ACMM vide order dated 28.06.2010
dismissed the application filed by the complainant under Section
340 of the CrPC for prosecuting the petitioners. It was noted that
no grounds for proceeding against the petitioners were made out.
It was further noted that there existed no sufficient material on
record to re-frame the charge or proceed against the petitioners.
It was noted that the order of the learned MM discharging the
petitioners was challenged neither by the complainant nor by the
prosecution. It was noted that the civil suit between the parties
was compromised after the filing of the present criminal case and
that the complainant had received substantial amount for
compromising the civil suit.
12. It was noted that admittedly as per the complainant, he
executed the affidavit without any pressure, coercion, or fear
when the compromise was effected. It was noted that it was the
case of the complainant that the lines relating to the names of the
petitioners being wrongly mentioned was subsequently added. It
Signature Not Verifiedwas noted that except for the bald allegations, there is no material
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before the Court to infer that the lines were subsequently added.
In that light, the learned ACMM dismissed the application under
Section 340 of the CrPC filed by the complainant while
specifically noting that there existed no sufficient material to
reframe charge or proceed against the petitioners. A challenge to
the order dated 28.06.2010 passed by the learned ACMM
dismissing the application under Section 340 of the CrPC was
subsequently also dismissed by the learned ASJ vide order dated
11.08.2010.
13. Subsequently, an application under Section 319 of the
CrPC was filed by the State seeking summoning of the
petitioners as accused persons in the present case. The learned
CMM vide order dated 20.04.2015 dismissed the application
under Section 319 of the CrPC while specifically noting that the
petitioners sought to be summoned have already been
discharged. It was noted that the power under Section 319 of the
CrPC could be exercised to summon an accused formerly
discharged, however, the same could be done only after taking
recourse to Section 398 of the CrPC. The learned CMM,
consequently, observed that the persons discharged can be
summoned under Section 319 of the CrPC only upon an inquiry
after the invocation of Section 398 of the CrPC by the aggrieved
person. Consequently, the application under Section 319 of the
CrPC was dismissed.
14. The learned ASJ, by impugned order, directed the
summoning of the petitioners as accused in exercise of the power
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under Section 319 of the CrPC. The learned ASJ noted that the
complainant had specifically named the petitioners, and also
clarified their roles with regard to the commission of the
offences. It was noted that there were more than compelling
reasons that the petitioners be summoned despite the order of
discharge dated 28.08.1993 to face trial for the grave and serious
allegations levelled against them by the complainant.
15. The learned counsel for the petitioners submitted that the
learned Trial Court, without taking into consideration the
parameters of exercise of power under Section 319 of the CrPC,
erred in directing the summoning and prosecution of the
petitioners. He relied upon the decision of Hon’ble Apex Court
in Hardeep Singh v. State of Punjab : (2014) 3 SCC 92 to
contend that a person discharged of an offence stood on a
different footing than a person who has never been subjected to
investigation. He consequently submitted that if the Court found
it necessary to proceed against such person so discharged, then it
is mandatory that an enquiry under Section 398 of the CrPC be
conducted instead of resorting to the exercise of power under
Section 319 of the CrPC.
16. He submitted that in accordance with the dictum of the
Hon’ble Apex Court in Hardeep Singh v. State of Punjab
(supra), for a person who has been discharged, there can be no
commencement of proceedings under Section 319 of the CrPC
without recourse to the provisions of Section 300(5) read with
Section 398 of the CrPC.
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17. He submitted that while the power under Section 319 of
the CrPC is discretionary and extraordinary, the same should be
exercised sparingly and only in cases where the circumstances of
the case so warrant. He submitted that the test that has to be
applied is one which is more that the prima facie test exercised at
the time of framing of charge. He further submitted that the test
should be such that the evidence, if unrebutted, would lead to
conviction.
18. Per contra, the learned Additional Public Prosecutor for
the State submitted that the summoning of the petitioners is
necessary. He submitted that specific allegations were made by
the complainant during his examination. He submitted that in line
with the specific role attributed to the petitioners, their
summoning under Section 319 of the CrPC is necessary.
19. The learned counsel for Respondent No. 2 submitted that
serious allegations have been levelled against the petitioners in
the present case. He submitted that in the light of the specific
allegations made by Respondent No. 2 thereby describing the
involvement of the petitioners in the commission of the offence,
they ought to be summoned as accused persons.
ANALYSIS
20. In the present case, the learned MM vide order dated
28.08.1993 discharged the petitioners. Challenge to the said
order whereby the petitioners were discharged was never made
by the State, and the same has attained finality.
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21. Thereafter, the complainant had preferred an application
under Section 340 of the CrPC for prosecuting the petitioners
which was dismissed vide order dated 28.06.2010, and the
revision against the same was also dismissed vide order dated
11.08.2010. The same also has attained finality.
22. The present petition arises out of the challenge to the
impugned order dated 13.05.2019 whereby, the learned ASJ,
allowed the petition filed by the State and summoned the
petitioners in exercise of the power under Section 319 of the
CrPC on the ground that specific allegations regarding the role of
the petitioners have been made by the complainant.
23. The Hon’ble Apex Court in the case of Hardeep Singh v.
State of Punjab (supra) in relation to the exercise of power
under Section 319 of the CrPC to summon as accused persons
who have already been discharged observed as under:
“112. However, there is a great difference with regard to a
person who has been discharged. A person who has been
discharged stands on a different footing than a person who
was never subjected to investigation or if subjected to, but
not charge-sheeted. Such a person has stood the stage of
inquiry before the court and upon judicial examination of the
material collected during investigation, the court had come
to the conclusion that there is not even a prima facie case to
proceed against such person. Generally, the stage of
evidence in trial is merely proving the material collected
during investigation and therefore, there is not much change
as regards the material existing against the person so
discharged. Therefore, there must exist compelling
circumstances to exercise such power. The court should keep
in mind that the witness when giving evidence against the
person so discharged, is not doing so merely to seek revenge
or is naming him at the behest of someone or for such other
extraneous considerations. The court has to be circumspect
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in treating such evidence and try to separate the chaff from
the grain. If after such careful examination of the evidence,
the court is of the opinion that there does exist evidence to
proceed against the person so discharged, it may take steps
but only in accordance with Section 398 CrPC without
resorting to the provision of Section 319 CrPC directly.
xxx xxx xxx
115. Power under Section 398 CrPC is in the nature of
revisional power which can be exercised only by the High
Court or the Sessions Judge, as the case may be. According
to Section 300(5) CrPC, a person discharged under Section
258 CrPC shall not be tried again for the same offence
except with the consent of the court by which he was
discharged or of any other court to which the first-mentioned
court is subordinate. Further, Section 398 CrPC provides
that the High Court or the Sessions Judge may direct the
Chief Judicial Magistrate by himself or by any of the
Magistrates subordinate to him to make an inquiry into the
case against any person who has already been discharged.
Both these provisions contemplate an inquiry to be
conducted before any person, who has already been
discharged, is asked to again face trial if some evidence
appears against him. As held earlier, Section 319 CrPC can
also be invoked at the stage of inquiry. We do not see any
reason why inquiry as contemplated by Section 300(5) CrPC
and Section 398 CrPC cannot be an inquiry under Section
319 CrPC. Accordingly, a person discharged can also be
arraigned again as an accused but only after an inquiry as
contemplated by Sections 300(5) and 398 CrPC. If during or
after such inquiry, there appears to be an evidence against
such person, power under Section 319 CrPC can be
exercised. We may clarify that the word “trial” under
Section 319 CrPC would be eclipsed by virtue of above
provisions and the same cannot be invoked so far as a person
discharged is concerned, but no more.
116. Thus, it is evident that power under Section 319 CrPC
can be exercised against a person not subjected to
investigation, or a person placed in Column 2 of the charge-
sheet and against whom cognizance had not been taken, or a
person who has been discharged. However, concerning a
person who has been discharged, no proceedings can be
commenced against him directly under Section 319 CrPC
without taking recourse to provisions of Section 300(5) read
with Section 398 CrPC.
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Question (v)–Does the power under Section 319 CrPC
extend to persons not named in the FIR or named in the FIR
but not charge-sheeted or who have been discharged?
Answer 117.6. A person not named in the FIR or a person
though named in the FIR but has not been charge-sheeted or
a person who has been discharged can be summoned under
Section 319 CrPC provided from the evidence it appears
that such person can be tried along with the accused
already facing trial. However, insofar as an accused who
has been discharged is concerned the requirement of
Sections 300 and 398 CrPC has to be complied with before
he can be summoned afresh.”
(emphasis supplied)
24. Recently, the Hon’ble Apex Court in the case of
Yashodhan Singh v. State of U.P. : (2023) 9 SCC 108 while
summarising the position with respect to summoning as accused,
a person who has already been discharged, observed as under:
“23. From the aforesaid observations of the Constitution
Bench of this Court in Hardeep Singh [Hardeep Singh v.
State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] ,
it is noted that an inquiry is contemplated as against a
person who has been discharged prior to the
commencement of the trial in terms of Section 227 CrPC as
extracted above but on an inquiry, if it appears that there is
evidence against such a discharged person, then power
under Section 319 CrPC can be exercised against such a
discharged person. This clearly would mean that when a
person who is not discharged but is to be summoned as per
Section 319 CrPC on the basis of satisfaction derived by the
court on the evidence on record, no inquiry or hearing is
contemplated. This would clearly indicate that principle of
natural justice and an opportunity of hearing a person
summoned under 319 CrPC are not at all contemplated.
Such a right of inquiry would accrue only to a person who
is already discharged in the very same proceeding prior to
the commencement of the trial. This is different from
holding that a person who has been summoned as per
Section 319 CrPC has a right of being heard in accordance
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an accused to be tried along with other accused.”
25. The petitioners were discharged noting that with respect to
the petitioner – Sarabjeet Singh, he was not named in the FIR or
in the chargesheet, and that there existed no evidence to connect
him with the offence. In relation to the petitioner – K S Cheema,
it was observed that he was present in the office at the relevant
date and time and had not availed any leave from 15.05.1989 to
25.08.1989. Further, the duly sworn affidavit of the complainant
stating that the petitioners were not involved in the criminal case,
and that their names were wrongly mentioned, was also taken
into consideration while discharging the petitioners.
26. Sections 319, 300 of the CrPC have been reproduced as
under:
“300. Person once convicted or acquitted not to be tried for
same offence.–(1) A person who has once been tried by a
Court of competent jurisdiction for an offence and convicted
or acquitted of such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried again for
the same offence, nor on the same facts for any other offence
for which a different charge from the one made against him
might have been made under sub-section (1) of Section 221,
or for which he might have been convicted under sub-section
(2) thereof.
(2) A person acquitted or convicted of any offence may be
afterwards tried, with the consent of the State Government,
for any distinct offence for which a separate charge might
have been made against him at the former trial under sub-
section (1) of Section 220.
(3) A person convicted of any offence constituted by any act
causing consequences which, together with such act,
constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned
offence, if the consequences had not happened, or were not
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was convicted.
(4) A person acquitted or convicted of any offence
constituted by any acts may, notwithstanding such acquittal
or conviction, be subsequently charged with, and tried for,
any other offence constituted by the same acts which he may
have committed if the Court by which he was first tried was
not competent to try the offence with which he is
subsequently charged.
(5) A person discharged under Section 258 shall not be
tried again for the same offence except with the consent of
the Court by which he was discharged or of any other
Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of
Section 26 of the General Clauses Act, 1897 (10 of 1897) or
of Section 188 of this Code. Explanation.–The dismissal of a
complaint, or the discharge of the accused, is not an
acquittal for the purposes of this section.
xxx xxx xxx
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 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 afresh, 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.
27. The short point for consideration before this Court is thus
whether the learned ASJ could have summoned the petitioners in
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first resorting to the procedure prescribed under Section 398 and
300 (5) of the CrPC.
28. In the present case, the learned ASJ summoned the
petitioners as accused under Section 319 of the CrPC in FIR No.
273/1989 for commission of offence under Sections 120B/ 147/
148/ 149/ 323/ 325/ 427/447/506 of the IPC for which the other
accused persons namely Sikander Singh, Lakhpat Rai, V.K. Ghai
had been charged vide order dated 28.08.1993.
29. The learned ASJ relied upon the decision of the Hon’ble
Apex Court in Labhuji Amratji Thakor and Others v. State of
Gujarat and Another : (2019) 12 SCC 644 wherein it was
observed as under:
“6. Section 319 CrPC provides that 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. The court, thus, during the trial on the basis of
any evidence is fully empowered to proceed against any
person, whose name was not even included in the FIR or the
charge-sheet.
7. The parameters of exercise of power under Section 319
CrPC has been explained by this Court time and again. It is
sufficient to refer to the Constitution Bench judgment in
Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3
SCC 92 : (2014) 2 SCC (Cri) 86] , where this Court had
considered the following issue amongst others: (SCC p. 112,
para 6.4) “6.4. (iv) What is the nature of the satisfaction
required to invoke the power under Section 319 CrPC to
arraign an accused? Whether the power under Section
319(1) CrPC can be exercised only if the court is satisfied
that the accused summoned will in all likelihood be
convicted?”
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xxx xxx xxx
10. The Constitution Bench in Hardeep Singh case [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC
(Cri) 86] has given a caution that power under Section 319
CrPC is a discretionary and extraordinary power, which
should be exercised sparingly and only in those cases where
the circumstances of the case so warrant. The crucial test,
which has been laid down as noted above is “[t]he test that
has to be applied is one which is more than prima facie case
as exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes unrebutted,
would lead to conviction” (SCC p. 138, para 106). The
present is a case, where the trial court had rejected the
application filed by the prosecution under Section 319 CrPC.
Further, in the present case, the complainant in the FIR has
not taken the names of the appellants and after investigation
in which the statement of victim was also recorded, the
names of the appellants did not figure. After carrying
investigation, the charge-sheet was submitted in which the
appellants’ names were also not mentioned as accused. In the
statement recorded before the police, the victim has named
only Natuji with whom she admitted having physical
relations and who took her and with whom she went out of
the house in the night and lived with him at several places.
The mother of victim in her statement before the court herself
has stated that the victim girl returned to the house after one-
and-a-half months. In the statement, before the court, the
victim has narrated the entire sequence of events. She has
stated in her statement that accused Natuji used to visit her
uncle’s house Vishnuji, where she met Natuji. She, however,
stated that it was Natuji, who had given her mobile phone.
Her parents came to know about she having been given
mobile phone by Natuji, then they went to the house of Natuji
and threatened Natuji. After one month, Natuji gave another
mobile phone to the victim, who had taken it. She stated that
in the night at 12 o’clock, Natuji along with his three friends
had taken her to Morbi in a jeep. She further stated that she
and Natuji stayed for three days at the said place and Natuji
had intercourse with her at the said place. When Natuji came
to know about lodging of complaint, he took her to Modasa
in the jeep. The jeep was given by Labhuji and the other two
appellants were also in the jeep. She further stated that
Labhuji, Shashikant and Jituji came in the jeep and took her
and Natuji to the police station, where the police
interrogated her and she recorded her statement. Natuji was
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of the POCSO Act.”
30. Reliance has also been placed on the judgment of the
Hon’ble Apex Court in Rajesh and Others v. State of Haryana :
(2019) 6 SCC 368 wherein it was observed as under:
“6.8. Considering the law laid down by this Court in
Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3
SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and
findings referred to and reproduced hereinabove, it emerges
that (i) the Court can exercise the power under Section 319
CrPC even on the basis of the statement made in the
examination-in-chief of the witness concerned and the Court
need not wait till the cross-examination of such a witness
and the Court need not wait for the evidence against the
accused proposed to be summoned to be tested by cross-
examination; and (ii) a person not named in the FIR or a
person though named in the FIR but has not been charge-
sheeted or a person who has been discharged can be
summoned under Section 319 CrPC, provided from the
evidence (may be on the basis of the evidence collected in the
form of statement made in the examination-in-chief of the
witness concerned), it appears that such person can be tried
along with the accused already facing trial.”
31. The decision of the Hon’ble Apex Court in Labhuji
Amratji Thakor and Others v. State of Gujarat and Another
(supra) in the opinion of this Court not applicable to the facts of
the present Court.
32. In Labhuji Amratji Thakor and Others v. State of
Gujarat and Another (supra), after receiving the FIR, the police
conducted investigation and submitted chargesheet under
Sections 363/366 of the IPC and Sections 3/4 of the POCSO Act
against one Natuji, the accused. Therein, an application under
Section 319 of the CrPC was filed by the APP contending that
the victim, in her statement, had also taken the name of Labhuji,
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Shashikant and Jituji also, and prayer was made to proceed
against them by initiating appropriate legal proceedings. The
learned POCSO Judge, after considering the submissions of the
learned counsel for the parties, rejected the application, and
noted that prima facie it appeared that with mala fide intention,
the name of the appellants had been disclosed. The revision
petition against the same was allowed by the Hon’ble High
Court. While setting aside the order of the Hon’ble High Court, it
was observed that Section 319 of the CrPC provides that where
in the course of inquiry, or trial of offence, it appeared from
evidence that any person not being accused has committed any
offence for which such person could be tried together with the
accused, then the Court may proceed against such person for the
offence which he appears to have committed. The issue before
the Hon’ble Apex Court did not concern a situation wherein the
accused persons had already been discharged by the learned Trial
Court after the appreciation of evidence and the said order had
attained finality.
33. In the present case, after a consideration of the facts and
circumstances, the petitioners were discharged vide order dated
28.08.1993. This order was challenged neither by the
complainant nor by the prosecution and the same attained
finality.
34. The learned ASJ noted that the petitioner – K S Cheema
was named in the FIR. It was noted that the complainant had also
filed a detailed complaint in which he gave a detailed version of
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the occurrence. It was noted that the perusal of chargesheet
revealed that sufficient evidence had come on record against the
petitioner – Sarabjeet Singh as well. It was noted that the
complainant, in his testimonial deposition, had specifically
named both the petitioners and had also clarified the roles with
regard to the commission of the offences. In this light, the
learned ASJ noted that there existed more than compelling
reasons that even after the order of discharge, the petitioners be
summoned by exercising revisionary power under Section 398 of
the CrPC read with Section 319 of the CrPC to face trial.
35. An accused once discharged can undoubtedly be
summoned as accused, however, after following the provisions of
Section 398 of the CrPC. The learned ASJ merely noted that
there existed compelling circumstances that the petitioners be
summoned in exercise of power under Section 398 of the CrPC
read with Section 319 of the CrPC. However, while noting so,
the learned ASJ, then went on to summon the petitioners in
exercise of the power under Section 319 of the CrPC directly.
36. Section 398 of the CrPC reads as under:
398. Power to order inquiry.–On examining any record
under Section 397 or otherwise, the High Court or the
Sessions Judge may direct the Chief Judicial Magistrate
by himself or by any of the Magistrates subordinate to
him to make, and the Chief Judicial Magistrate may
himself make or direct any subordinate Magistrate to
make, further inquiry into any complaint which has been
dismissed under Section 203 or sub-section (4) of Section
204, or into the case of any person accused of an offence
who has been discharged:
Signature Not Verified Provided that no Court shall make any direction under
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this section for inquiry into the case of any person who
has been discharged unless such person has had an
opportunity of showing cause why such direction should
not be made.”
37. In accordance with Section 398 of the CrPC, in a case
where any person accused of an offence stands discharged, the
High Court or the Sessions Judge may direct the Chief Judicial
Magistrate by himself or by any of the Magistrates subordinate to
him to make further inquiry. Subsequently, if during or after such
inquiry there appears to be evidence against such person, then
power under Section 319 of the CrPC can be exercised.
38. The nature of inquiry, at this stage, is in the discretion of
the Magistrate. Consequently, such inquiry may or may not
include recording of further evidence on behalf of the
complainant. The Magistrate may, without recording further
evidence, go on to reappreciate the materials already before it to
assess whether a case is made out or not.
39. This Court has perused the testimony of the complainant
recorded on 23.12.2010 after the framing of charges against the
other accused. The complainant, in his examination-in-chief,
stated that his friend and himself were taken to some hotel called
Hotel Kingsway. He stated that his friend and himself were taken
to Room No. 303 where the petitioners along with other accused
persons were present who claimed themselves to be CRPF
officers. He stated that all of the accused persons including the
petitioners gave beatings to the complainant and his friend, and
also forcibly took away their watches and a few important
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documents. He stated that the petitioner – K S Cheema gave pills
to the complainant and his friend so that they could sleep. He
further stated that on the following day, when the complainant
and his friend woke up, they found that the accused persons and
the petitioners were constantly visiting the room, and they again
gave pills to the complainant and his friend. The complainant
also stated that when the complainant and his friend woke up in
the night thereafter, the petitioners along with other accused
persons made them sit in an ambassador car and took them to a
farm house.
40. The learned MM while passing the order of discharge had
considered such allegations made in the FIR and had noted that
there was no evidence to implicate the petitioner – Sarabjeet
Singh. At such time, the petitioner – Sarabjeet Singh was not
even named in the FIR. In respect of petitioner – K S Cheema,
the plea of alibi was considered. The learned MM also
considered the duly sworn affidavit of the complainant that stated
that the names of the petitioners were wrongly mentioned and
that they were not involved in the criminal case. Undisputedly, as
discussed above, this order was not challenged by the
prosecution, and the same attained finality.
41. It is equally pertinent to mention that a civil suit was
initially filed by the complainant seeking permanent injunction in
respect of the subject property. The said suit for permanent
injunction was dismissed as withdrawn on account of the
compromise effected between the parties. It is an admitted case
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that the civil suit was compromised between the parties after the
filing of the charge sheet in the present criminal case, and that
the complainant had also received a substantial sum for
compromising the suit. The said compromise had also not been
challenged by the complainant, and the same also attained
finality.
42. Admittedly, neither the order of discharge nor the
compromise effected between the parties were challenged. Much
emphasis has been placed on the fact the sworn affidavit of the
complainant were forged, however, as is evident from a perusal
of the record, but for the averments made by the complainant,
nothing has been appended to substantiate the contention. Once
the civil suit between the parties had been compromised in
respect of the subject property, and no challenge thereof was
made, this Court does not deem it apposite to resuscitate the
dispute. The present petition thus seems but an indirect attempt
to rekindle an incident that had occurred more than 3 decades
ago.
43. In the light of the dictum of the Hon’ble Apex Court in
Hardeep Singh v. State of Punjab (supra), once the petitioners
had been discharged, the procedure under Section 398 of the
CrPC could not have been circumvented by resorting to the
procedure under Section 319 of the CrPC directly.
44. It is not in doubt that the persons who have once been
discharged can also be summoned as an accused person if the
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after an inquiry as contemplated by Sections 300(5) and 398 of
the CrPC is conducted, and during such inquiry there appears to
be evidence against such persons.
45. The impugned order without there being any new material and
without any inquiry as contemplated in Section 398 of the CrPC, is in
the nature of review of earlier order of discharge which had already
attained finality long back on 28.08.1993. Even otherwise, the
affidavit of the complainant not naming the petitioners as accused has
already been a subject matter of record before a Civil Court which has
led to complainant settling the dispute. Said proceedings or the
affidavit have not been challenged. Application under Section 340 of
the CrPC though was filed by the complainant but the same was also
dismissed and the order also attained finality.
46. In view of the aforesaid, the present petitions are allowed,
and the impugned order is set aside.
AMIT MAHAJAN, J
DECEMBER 9, 2024
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