Hardeep Singh V. State Of Punjab & Ors. in India
Hardeep Singh V. State Of Punjab & Ors. [2008] Insc 1890 (7 November 2008)
Court Judgment Information
- Year: 2008
- Date: 7 November 2008
- Court: Supreme Court of India
- INSC: [2008] INSC 1890
Text of the Court Opinion
CRIMINAL APPEAL No. 1751 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) No. 2051 OF 2007 MANJIT PAL SINGH . (Appelant) Versus
C.K. THAKKER, J.
1. Leave granted.
2. Both the parties in the High Court have filed present appeals against the judgment and order passed by the High Court of Punjab &
2 Haryana, dated October 23, 2006 in Criminal Revision Nos. 773 of 2006 and 1648 of 2006.
3. To appreciate the contentions raised by the parties, it would be appropriate to narrate few facts.
4. In the appeal arising out of Special Leave Petition (Crl.) No. 166 of 2007, the case of the prosecution is that an auction for leasing the land was held by the Gram Panchayat of village Indrapuri, Tehsil Samana, District Patiala on April 21, 2004 for cultivation on yearly basis (Eksali) for the year 2004-05. The bid of the appellant was accepted and lease was granted in his favour. The appellant was thus in possession of the land.
5. According to the prosecution, on June 24, 2004, the appellant was ploughing the land.
The accused persons went there with deadly weapons and caused injuries to the appellant as well as other prosecution witnesses. First Information Report (FIR) was lodged against the accused at Police Station Sadar, Samana for 3 commission of offences punishable under Sections 307, 326, 336 and 427 read with Sections 120B, 148 and 149 of the Indian Penal Code, 1860 (IPC) as also for offences punishable under Sections 25, 27, 54 and 59 of the Arms Act, 1959. Accused were arrested.
Vijay Preet Singh (respondent No. 2) was one of them.
6. It is the allegation of the appellant that Vijay Preet Singh-respondent No.2 herein is the son of Sukhvinder Singh, Chairman of Panchayat Samiti, Samana. The said Sukhvinder Singh interfered with the investigation. With a view to get the name of his son Vijay Preet Singh deleted by exercising influence on Police Authorities, he made an application on June 26, 2004, i.e. within two days of the incident, lodging of FIR and arrest of Vijay Preet Singh to Senior Superintendent of Police (SSP), Patiala, inter alia, stating therein that Vijay Preet Singh was resident of village Meayalkhurd, was studying in 10+2 class and at 4 the time of occurrence he was not there but was at his residence and was falsely implicated in the case. He, therefore, asked the Senior Superintendent of Police (SSP) to make an inquiry either himself or through some senior officer so that justice be done to Vijay Preet Singh.
7. It also appears that Jagtar Singh respondent No.3 herein also made a similar application on July 03, 2004 to Deputy Inspector General (DIG), Patiala asserting that in an incident dated June 24, 2004, his name was not mentioned in the FIR, but he had been falsely involved and he was likely to be arrested. His name was given by some persons due to grudge by the complainant side. There was a cross-case also. He, therefore, prayed that an inquiry may be conducted through an independent officer and the applicant may not be arrested till he is proved guilty.
8. It appears that an inquiry was conducted by police and a report was submitted 5 by Superintendent of Police (D), Patiala to SSP, Patiala on July 12, 2004 wherein it was stated that respondent Nos. 2 and 3 i.e. Vijay Preet Singh and Jagtar Singh had not committed any offence and they were falsely implicated. A recommendation was, therefore, made not to initiate proceedings against both of them. Both the persons were, therefore, discharged.
9. During the course of trial, however, depositions of witnesses were recorded. PW2 Hardeep Singh, in his deposition, stated that Vijay Preet Singh as also Jagtar Singh, respondents Nos. 2 and 3 were present at the time of incident with weapons. So far as respondent No.2-Vijay Preet Singh is concerned, his name was mentioned in the FIR. He participated in the incident and was having a weapon with him (gandasi). He was also arrested by the police from the place of offence.
Similarly, respondent No.3-Jagtar Singh was present with soti. He also participated in the incident by raising lalkaras. In furtherance of 6 common object, all the accused assaulted the complainant party and committed the offences with which they were charged. It is on the basis of the report submitted by Superintendent of Police (D), Patiala to Senior Superintendent of Police, Patiala that they were discharged.
An application was, therefore, made by the Addl. Public Prosecutor under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code’) to include respondent Nos. 2 and 3 as accused and to summon them for trial.
10. The Court of the Addl. Sessions Judge, Patiala, however, by an order dated January 12, 2006 rejected the application observing that he did not find sufficient grounds to proceed against Vijay Preet Singh and Jagtar Singh.
11. Being aggrieved by the said order, the appellant herein approached the High Court of Punjab & Haryana by filing Criminal Revision No. 773 of 2007. The High Court, however, dismissed the Revision and confirmed the order 7 passed by the trial Court. The said order is challenged in the present appeal.
12. In the appeal arising out of Special Leave Petition (Crl.) No. 2051 of 2007, the case of the appellant was that the accused [complainant party in SLP (Crl.) No. 166 of 2007] had formed unlawful assembly and committed offences punishable under Sections 307, 326, 336, 447, 427 read with Sections 148 and 149, Indian Penal Code (IPC) as also under Sections 25, 27, 54 and 59 of the Arms Act, 1959. Cross FIR was, therefore, filed on the same day i.e. on June 24, 2004.
13. According to the appellant, respondent No.2-Kashmir Singh, son of S. Sucha Singh was very much present but his name was not included in the charge-sheet and as per the report submitted by the Police Authorities, said Kashmir Singh was innocent. During the course of trial, however, PW5-Jagdeep Singh stated that Kashmir Singh was also present and was one of the members of unlawful assembly. An 8 application was, therefore, made to the trial Court (Addl. Sessions Judge) by the Addl.
Public Prosecutor under Section 319 of the Code to include the name of Kashmir Singh as an accused and to issue summons to him. The prayer was, however, rejected by the trial Court which was challenged by the appellant herein by filing Criminal Revision No. 1648 of 2006, but it was also dismissed by the High Court. The said order is challenged by the appellant in this Court.
14. Notice in SLP (Crl) No. 166 of 2007 was issued on January 22, 2007. In the other matter, i.e. SLP (Crl) No. 205 of 2007, notice was issued on April 02, 2007. Both the cases were ordered to be heard together. The Registry was directed to list the matter for final hearing on a non-miscellaneous day and that is how the matters have been placed before us.
15. We have heard learned counsel for the parties.
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16. The learned counsel for the appellant in the appeal arising out of SLP (Crl) No. 166 of 2007 submitted that the order passed by the trial Court and confirmed by the High Court is clearly erroneous and deserves to be set aside.
It was submitted that so far as Vijay Preet Singh is concerned, he was very much present at the time of incident with a weapon (gandasi), his name was included in the First Information Report (FIR) and he was also arrested by the police from the place of offence since he actually participated in the crime. The Investigating Agency was, therefore, wholly wrong in deleting his name and in reporting that Vijay Preet Singh was not present at the time of incident and he reached at the place of offence after the incident was over. Such report was made only with a view to oblige Sukhvinder Singh, father of Vijay Preet Singh who was Chairman of Panchayat Samiti, Samana.
Even otherwise, during the course of trial, the prosecution evidence revealed that Vijay Preet 1 Singh was present at the time of incident. A clear case for application of Section 319 of the Code had been made out and the trial Court was wrong in rejecting the application to join Vijay Preet Singh as an accused and to issue summons to him. Similar error was committed by the High Court.
17. Likewise, the Investigating Agency wrongly recommended deletion of name of Jagtar Singh. From the examination of prosecution witnesses, it was clear that Jagtar Singh was also present at the time of incident with weapon and he participated in the crime. An application under Section 319 of the Code, hence, ought to have been allowed.
18. It was submitted that even if name of a particular person is not mentioned in the FIR as an accused, he can, later on, be added as an accused and a summons can be issued by a Court in exercise of power under Section 319 of the Code. It was, therefore, submitted that the order passed by the trial Court and confirmed 1 by the High Court deserves to be set aside and the appeal deserves to be allowed.
19. The learned counsel for respondent Nos. 2 and 3, on the other hand, supported the order passed by the trial Court and confirmed by the High Court.
20. It was stated that an inquiry had been conducted by the Investigating Agency and on the basis of statements recorded during investigation, it was proved that respondent Nos.2-Vijay Preet Singh reached at the spot after the incident was over and hence, he could not be joined as accused though his name was found in FIR and he was arrested by police and accordingly report was made to delete his name.
21. So far as Jagtar Singh is concerned, his name was not mentioned in the FIR. During the investigation also, nobody stated that Jagtar Singh participated in the incident and, hence, his name was deleted.
22. According to the counsel, only at the time of trial, with a view to falsely implicate 1 respondent Nos. 2 and 3, prosecution witnesses had named them. The trial Court, therefore, rightly rejected the prayer and the High Court confirmed it. No case for interference by this Court in exercise of discretionary jurisdiction under Article 136 of the Constitution has been made out and the appeal deserves to be dismissed.
23. The learned counsel for the State also supported the respondents and prayed for dismissal of the appeal.
24. In the cross-appeal, learned counsel for the appellant submitted that Kashmir Singh was present and participated in the incident.
In the course of trial, the prosecution witnesses expressly stated about the presence and participation of respondent No.2-Kashmir Singh and the action of non-issuance of summons to respondent No.2-Kashmir Singh by the trial Court and confirmed by the High Court is erroneous and the appeal deserves to be allowed.
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25. The learned counsel for Kashmir Singh supported the order and prayed for dismissal of appeal. The counsel for the State also prayed for dismissal of appeal.
26. Now, Section 319 of the Code empowers a Court to proceed against any person if it appears from the evidence that such person has also committed an offence for which he can be tried together with other accused. The said section reads 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 had 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 detailed by such Court 1 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 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.
(emphasis supplied)
27. Sometimes while hearing a case against one or more accused, it appears to a Court from the evidence that some person other than the accused before it is also involved in that very offence. It is only proper that a Court should have power to summon such person by joining him as an accused in the case.
28. The primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not 1 only expeditiously but also simultaneously.
Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused.
The power must be conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.
29. Before three decades, in Joginder Singh & Anr. v. State of Punjab & Anr., (1979) 1 SCC 345, charge sheet was submitted against certain accused. During trial, however, evidence of some of the witnesses was recorded who implicated the appellants. A Public Prosecutor, therefore, moved an application to summon them and to try them along with other accused. The application was granted. The order was challenged by the appellants.
30. This Court considered the relevant provisions of the Code of Criminal Procedure, 1898 (old Code), Forty-first Report of the Law 1 Commission, the amendment made in the present Code and held that the Court could add any person, not accused before it, as accused and direct him to be tried along with the other accused for the offence or offences the added accused appears to have committed.
31. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.(1983) 1 SCC 1, the Food Inspector, noticing adulteration in `Morton Toffees’, filed a complaint against the Company, its Managing Director as well as Directors under the Prevention of Food Adulteration Act, 1954. The Managing Director and Directors approached the High Court by invoking Section 482 of the Code for quashing of proceedings which was granted and the proceedings against them were quashed. The question before this Court was whether Section 319 of the Code could be invoked once criminal proceedings against a person were quashed.
32. Replying the question in the affirmative and quoting with approval 1 observations in Joginder Singh, this Court held that if it appears to the Court that any person not being the accused before it, but against whom there appears, during trial, sufficient evidence indicating his involvement in the offence, he can be summoned.
33. The Court, however, was conscious of the extraordinary nature of the power under Section 319 of the Code and stated;
“(W)e would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law”.
(emphasis supplied)
34. In Shashikant Singh v. Tarkeshwar Singh & Anr., (2002) 5 SCC 738, during the pendency of trial of an accused, another person was summoned by the trial Court under Section 319 of the Code. But by the time he could be 1 brought before the Court, the trial against the accused was over. It was held by this Court that the words “could be tried together with the accused” in Section 319(1) were merely directory and if the trial against the other accused is over, such a person who was subsequently added as an accused, could be tried after the conclusion of the trial of the main accused.
35. In Michael Machado & Anr. V. Central Bureau of Investigation & Anr., (2000) 3 SCC 262, considering the basic requirements of Section 319 of the Code, this Court said;
“The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other 1 person has committed an offence.
Second is that for such offence that other person could as well be tried along with the already arraigned accused”.
36. Highlighting the underlying object of the provision, the Court proceeded to state;
“But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence.
A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty in the Court to proceed against other persons”.
37. Observing that there was no reasonable prospect of conviction of the persons sought to be arraigned as accused, the Court held that no 2 order could be made under Section 319 of the Code.
38. In Krishnappa v. State of Karnataka, (2004) 7 SCC 792, applying Ram Kishan Rohtagi and Michael Machado, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused.
39. In Y. Saraba Reddy v. Puthur Rami Reddy & Anr., (2007) 4 SCC 773 : (2007) 6 SCR 68, a three-Judge Bench of this Court to which one of us was a party (D.K. Jain, J.), a similar situation arose. In the FIR, names of certain persons were mentioned. On an application by those persons, the matter was investigated by the Deputy Superintendent of Police and the report was submitted that they were not present at the time of incident. On the basis of the report, their names were deleted from the array of accused. The case was 2 then committed to the Court of Session. PW1, in his examination involved the said persons and an application under Section 319 of the Code was filed for issuing summons to them. The trial Court rejected the application primarily on the ground that the plea of alibi was investigated by the Deputy Superintendent of Police and was found to be correct. The High Court did not find infirmity in the order. The action was challenged in this Court.
40. Allowing the appeal and setting aside the order of the High Court, Dr. Pasayat, J.
said; “If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated.
Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the 2 Code it was required to be analysed. The conclusion that the IO’s satisfaction should be given primacy is unsustainable”.
(emphasis supplied) 41. In Guriya & Ors. v. State of Bihar &
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