Punjab-Haryana High Court
Harwinder Singh vs State Of Punjab And Anr on 25 March, 2025
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 -
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
201 CRR-107-2012
Date of decision: 25th March, 2025
Harwinder Singh
...Petitioner
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present: Mr. Anupam Bhardwaj, Advocate for the petitioner.
Ms. Sakshi Bakshi, Assistant Advocate General, Punjab.
Mr. Ashish Aggarwal, Advocate for respondent No.2.
***
MANISHA BATRA, J (ORAL):-
The instant revision petition has been filed by the petitioner
challenging the order dated 12.12.2011 as passed by the Court of learned
Additional Sessions Judge, Amritsar, in case arising out of FIR No. 14 dated
01.03.2011 registered under Sections 307, 328 read with Section 34 of IPC
at Police Station Mehta, whereby an application filed under Section 319 of
Cr.P.C. by the petitioner-complainant had been dismissed.
2. Brief facts of the case relevant for the purpose of disposal of
this petition are that the aforementioned FIR was registered on the
allegations that on 26.02.2011, at about 07:00 PM, the petitioner was going
back to his village on his bike when the co-accused Bikramjit Singh, Nirvair
Singh along with the proposed accused Pargat Singh were found standing on
the way. They stopped the petitioner and asked him to give some tools from
1 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181CRR-107-2012 –
his motor bike as their motorcycle had broken down. While the petitioner
was trying to take out tool from his vehicle, the proposed accused caught
hold of him from backside, whereas accused Bikramjit Singh caught hold of
his neck and accused Nirvair Singh threw a jug containing acid on the face
of the petitioner. The petitioner hit the jug with his hands to save himself
and some of the acid had fallen on accused Nirvair Singh and Bikramjit
Singh. The rescue alarm raised by him, attracted his brother Narinder at the
spot, who rushed towards him and then the assailants fled from the spot. He
was taken to hospital. While alleging that the accused Nirvair Singh and
Bikramjit Singh suspected that the petitioner-complainant was having illicit
relationship with their sister and were offended due to that fact, he prayed
for taking action against them and the proposed accused i.e. respondent
No.2. Initially, a case under Section 328 read with Section 34 of IPC was
registered. Subsequently, offence under Seciton 307 of IPC was also added
on receipt of opinion of the doctor that the petitioner had attained permanent
disability, as he had totally lost his vision of both eyes.
3. As per the allegations, during the course of investigation,
respondent No.2 was exonerated. His name was kept in column No.2 of the
challan report and challan was presented against the co-accused Nirvair
Singh and Bikramjit Singh, after completion of usual formalities of
investigation qua them. The co-accused were charge-sheeted for commission
of offence punishable under Sections 307 and 328 read with Section 34 of
IPC. During trial, the petitioner appeared into the witness box as PW-1 and
recorded his sworn deposition. Thereafter, an application was moved by the
prosecution under Section 319 of Cr.P.C. for summoning the proposed
2 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 –
accused i.e. respondent No.2 as additional accused. This application was
dismissed by the learned trial Court and feeling aggrieved from the said
order, this petition has been filed.
4. It is argued by learned counsel for the petitioner that while
passing the impugned order, the learned trial Court did not appreciate the
fact that respondent No.2, who is sought to be summoned as additional
accused was not only named specifically in the FIR but even in his sworn
deposition, the petitioner had specifically named him along with the specific
role played by him. It is submitted that the learned trial Court ought to have
exercised the powers under Section 319 of Cr.P.C. and should have
summoned respondent No.2 as additional accused and it committed a grave
error in not doing so. It is argued that in the unfortunate incident having
taken place with the petitioner, he had lost vision of both of his eyes. His
statement inspired full confidence and there was no reason for the trial Court
to disbelieve the same. There was overwhelming evidence in the form of his
testimony to prove the complicity of respondent No.2 in the commission of
offences under Sections 328 and 307 of IPC. It is therefore, argued that the
impugned order is not sustainable, is liable to be set aside, and the petition
deserves to be accepted and respondent No.2 is liable to be summoned as
additional accused and to face trial along with accused already arraigned.
5. Learned State counsel has not contested the petition.
6. Learned counsel for respondent No.2, on the other hand has
vehemently argued that after conducting thorough investigation in the
matter, the investigating agency had exonerated him as no incriminating
material could be found against him and he was found to be innocent. It is
3 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 –
submitted that except the bare statement of the petitioner, which is
reiteration of the allegations in the complaint, there is no further
material/evidence on record and therefore, the learned trial Court had rightly
refused to summon him as an accused. The impugned order is well reasoned
and does not warrant any interference. With these broad submissions, it is
urged that the petition is devoid of any merits and is liable to be dismissed.
7. It is relevant to mention here that since the status of the trial qua
the co-accused was not clear therefore, report of the trial Court had been
called and as per the report, received while letter No. 479 dated 17.12.2024
from the trial Court i.e. Court of learned Additional Sessions Judge,
Amritsar, the co-accused Bikramjit Singh and Nirvair Singh absconded
during trial. Ultimately proclamation proceedings were initiated against
them and they were declared as proclaimed offenders vide order dated
27.03.2023. The matter was ordered to be adjourned as state sine die and file
had been ordered to be consigned to record.
8. At the outset, it would be proper to refer to the provisions of
Section 319 of the Cr.P.C. which read 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 arrested
4 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181CRR-107-2012 –
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 witnesses reheard;
(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.”
9. Having noted the above-mentioned provision, it is amply clear
that the power bestowed on the Court is to the effect that in the course of an
inquiry into, or trial of an offence, based on the evidence tendered before the
Court, if it appears to the Court that such evidence points to any person other
than the accused who are being tried before the Court, to have committed
any offence and such accused has been excluded in the charge sheet or in the
process of trial till such time, could still be summoned and tried together
with the accused, for the offence which appears to have been committed by
such persons summoned as additional accused. The issue relating to the
powers to be exercised under Section 319 of Cr.P.C. had arisen for detailed
consideration in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92,
wherein the scope, procedure and the stage at which such power was to be
5 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 –
exercised, was considered and summarized. It was observed by Hon’ble
Supreme Court that the power under Section 319 Cr.P.C. is discretionary
and an extraordinary power. It has to be exercised sparingly and only in
those cases where the circumstances of the case so warrant. It is not to be
exercised because the Magistrate or the Sessions Judge, is of the opinion that
some other person may also be guilty of committing that offence. Only
where strong and cogent evidence occurs against a person from the material
placed before the Court that such power should be exercised and not in a
casual and cavalier manner. It was also observed that though only a prima
facie case is to be established from the evidence led before the Court, not
necessarily tested on the anvil of cross-examination, it requires much strong
evidence than mere probability of his complicity. The test that has to be
applied is one which is more than prima facie case as has been established at
the time of framing of charge, but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to conviction. In the absence of
such satisfaction, the Court should refrain from exercising power under
Section 319 of Cr.P.C.
10. The legal position on the scope and ambit of powers of the
Court under Section 319 of Cr.P.C. has also been summarized by Hon’ble
Apex Court in the case cited as Manjeet Singh v. State of Haryana and
others, (2021) 18 Supreme Court Cases 321, wherein it was observed as
under:-
“(i) That while exercising the powers under section 319 CrPC and to
summon the persons not charge-sheeted, the entire effort is not to6 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181CRR-107-2012 –
allow the real perpetrator of an offence to get away unpunished.
(ii) For the empowerment of the courts to ensure that the criminal
administration of justice works properly.
(iii) The law has been properly codified and modified by the
legislature under CrPC indicating as to how the courts should
proceed to ultimately find out the truth so that the innocent does not
get punished but at the same time, the guilty are brought to book
under the law.
(iv) To discharge duty of the court to find out the real truth and to
ensure that the guilty does not go unpunished.
(v) Where the investigating agency for any reason does not array
one of the real culprits as an accused, the court is not powerless in
calling the said accused to face trial.
(vi) Section 319 CrPC allows the court to proceed against any
person who is not an accused in a case before it.
(vii) The court is the sole repository of justice and a duty is cast upon
it to uphold the rule of law and, therefore, it will be inappropriate to
deny the existence of such powers with the courts in our criminal
justice system where it is not uncommon that the real accused, at
times, get away by manipulating the investigating and/or the
prosecuting agency.
(viii) Section 319 CrPC is an enabling provision empowering the
court to take appropriate steps for proceeding against any person
not being an accused for also having committed the offence under
trial.
(ix) The power under section 319(1) CrPC can be exercised at any
stage after the charge-sheet is filed and before the pronouncement of
judgment, except during the stage of Sections 207/208 CrPC,
committal, etc. which is only a pretrial stage intended to put the
process into motion.
7 of 12
::: Downloaded on - 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 -
(x) The court can exercise the power under section 319 CrPC only
after the trial proceeds and commences with the recording of the
evidence.
(xi) The word “evidence” in section 319 CrPC means only such
evidence as is made before the court, in relation to statements, and
as produced before the court, in relation to documents.
(xii) It is only such evidence that can be taken into account by the
Magistrate or the court to decide whether the power under section
319 CrPC is to be exercised and not on the basis of material
collected during the investigation.
(xiii) If the Magistrate/court is convinced even on the basis of
evidence appearing in examination-in-chief, it can exercise the
power under section 319 CrPC and can proceed against such other
person(s).
(xiv) That the Magistrate/court is convinced even on the basis of
evidence appearing in examination-in-chief, powers under section
319 CrPC can be exercised.
(xv) That power under section 319 CrPC can be exercised even at
the stage of completion of examination-in-chief and the court need
not to wait till the said evidence is tested on cross-examination.
(xvi) Even in a case where the stage of giving opportunity to the
complainant to file a protest petition urging upon the trial court to
summon other persons as well who were named in FIR but not
implicated in the charge-sheet has gone, in that case also, the Court
is still not powerless by virtue of section 319 CrPC and even those
persons named in FIR but not implicated in the charge-sheet can be
summoned to face the trial, provided during the trial some evidence
surfaces against the proposed accused (may be in the form of
examination-in-chief of the prosecution witnesses).
(xvii) While exercising the powers under section 319 CrPC the Court
is not required and/or justified in appreciating the
8 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 –
deposition/evidence of the prosecution witnesses on merits which is
required to be done during the trial.”
11. In view of the ratio of law as laid down in the above cited
authorities, it is apparent that Section 319 of Cr.P.C. is an enabling provision
empowering a Court to take appropriate steps for proceeding against any
person not being an accused for having committed the offence under trial.
This provision allows a Court to proceed against any person, who is not an
accused in a case before it. A person against whom summons are issued or
sought to be issued in exercise of such powers, has to necessarily not be an
accused already facing trial. He can either be a person named in column
No.2 of the charge-sheet filed under Section 173 of Cr.P.C. or a person
whose name has been disclosed and any material before the Court i.e. to be
considered for the purpose of trying the offence, but not investigated. He has
to be a person whose complicity may be indicated and connected with the
commission of the offence. The Court can exercise power under Section 319
of Cr.P.C. only after the trial proceeds and commences with the recording of
evidence. What is essential for the purpose of this Section is that there
should appear some evidence against a person not proceeded against. The
stage of proceedings is irrelevant. The purpose of this Section is to do
complete justice and to ensure that persons, who ought to have been tried as
well are also tried. The word ‘evidence’ in Section 319 of Cr.P.C. means
only such evidence as is made before the Court, in relation to the statements,
and as produced before the Court, in relation to the documents. It is only
such evidence that can be taken into account by the Magistrate or the Court
to decide whether the power under Section 319 of Cr.P.C. is to be exercised
9 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 –
or not.
12. All that is required for exercise of power under this Section is
that it must appear to the Court that some other person, who is also not
facing trial may also have been involved in the offence. The pre-requisite for
the exercise of this power is similar to be prima facie view which the
Magistrate must come to in order to check cognizance of the offence. No
straight jacket formula can, however, be laid with respect to the conditions
for arriving at such opinion and the trial Court, if convinced even on the
basis of evidence appearing in examination-in-chief, can exercise the power
under Section 319 of Cr.P.C. and can proceed against such person. The test
that has to be applied is one which is more than prima facie case as
exercised at the time of framing charge, but short of satisfaction to an extent
that the evidence, if goes unrebutted, would lead to conviction. In S.
Mohammed Ispahani Vs. Yogendra Chandak (2017) 16 SCC 226, the
Hon’ble Supreme Court had observed that when a person is named in the
FIR by the complainant but police after investigation, finds no role of that
particular person and files the charge sheet without implicating him, the
Court is not powerless and at the stage of summoning, if the trial Court finds
that a particular person should be summoned as accused, even though not
named in the charge-sheet, it can do so.
13. On applying the ratio of law as laid down in the above cited
authorities and discussed above to the facts of the case in hand, I am of the
considered opinion that the learned trial Court has erred in dismissing the
application filed under Section 319 of Cr.P.C. by the petitioner and by
refusing to summon to respondent No.2 to face trial as additional accused
10 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 –
along with the accused already arraigned. It is required to be noted that
respondent No.2 was specifically named in the FIR with specific role
attributed to him and it was specifically alleged that he had caught hold of
the petitioner from the backside whereas, the co-accused Nirvair Singh had
thrown acid on the petitioner and co-accused Bikramjit Singh had caught
hold of his neck. Despite the above specific allegations, when the charge
sheet/final report was filed, only co-accused were charge-sheeted and the
name of respondent No.2 was kept in column No.2. On a perusal of the
challan report, it is revealed that no specific reason for exonerating
respondent No.2 has been given. In his examination-in-chief, the petitioner
specifically named the proposed accused i.e. respondent No.2. His evidence
being evidence of the victim itself has greater evidentiary value and in my
considered opinion unless compelling reasons existed, his statement was not
to be discarded lightly. While passing the impugned order, the only
reasoning given by the learned trial Court is that there is no corroboration to
the statement of the petitioner for the time being and mere catching hold of
the complainant was not a sufficient ground to summon the proposed
accused. This reasoning is not sustainable at all. The learned trial Court lost
sight of the fact that the allegations against respondent No.2 and the co-
accused right from the very beginning were same. While dismissing the
application, the learned trial Court has failed to exercise the jurisdiction
vested in it in a proper manner. The evidence produced on record in the form
of testimony of the petitioner was prima facie sufficient to prove to show the
complicity of respondent No.2 in the commission of the same offences for
which the co-accused have been booked, challaned and charge-sheeted.
11 of 12
::: Downloaded on - 01-04-2025 21:40:28 :::
Neutral Citation No:=2025:PHHC:041181
CRR-107-2012 -
14. In view of the discussion as made and for the reasons stated
above, the impugned order dismissing the application under Section 319 of
Cr.P.C. submitted by the petitioner to summon respondent No.2 as
additional accused is unsustainable and is liable to be quashed and set aside.
The same is accordingly set aside. Consequently, the petition is allowed and
the learned trial Court is directed to summon respondent No.2 as additional
accused to face trial in case arising out of FIR No. 14 dated 01.03.2011 at
Police Station Mehta for the offences punishable under Sections 307 and 328
read with Section 34 of IPC. Since, the co-accused declared proclaimed
person, the learned trial Court shall proceed as against the petitioner only.
15. It is, however, specifically observed that the observations made
hereinabove are only prima facie for the purpose of exercising the powers
under Section 319 of Cr.P.C. and the learned trial Court will decide and
dispose of the trial in accordance with law on itself on merits and on the
basis of merits laid before it.
[MANISHA BATRA]
JUDGE
25th March, 2025
Parveen Sharma
1. Whether speaking/ reasoned : Yes / No
2. Whether reportable : Yes / No
12 of 12
::: Downloaded on – 01-04-2025 21:40:28 :::
[ad_1]
Source link