Nanak Chand vs State of Haryana

H.K. Sandhu, J.

The present petition has been filed by Nanak Chand and five other petitioners under Section 482 of the Code of Criminal Procedure for quashing first information report No. 51 dated 13.5.1991 registered at Police Station, Ding (Annexure P.1), the order dated 25.2.1992 (Annexure P2) and the order dated 7.4.1992 (Annexure P.3) vide which the petitioners were charged for an offence under Section 307 Indian Penal Code and the petitioners Budi Ram and Bag Chand were summoned by the trial Court.

Brief facts of the case giving rise to the filing of this petition are that Hans Raj respondent No. 2 cultivated the land of Raj Kumar who lived in Delhi for the last 15 years. Bag Chand petitioner was the attorney of Raj Kumar. Father of Hans Raj had instituted a suit with respect to the land under cultivation of Hans Raj and that suit was pending in a Court. The suit was defended by Budi Ram and Bag Chand and they wanted to disposes Hans Raj. On 12.5.1991 Hans Raj, his wife Raj Rani and brother Lachman Dass were present in the house when at about 10.00.P.M. all the petitioners entered the courtyard of the house of Hans Raj armed with Lathis and Gandasis. Budi Ram exhorted his companions and then he and Sham Chand attacked Hans Raj and hit him on his head with Gandasi. Bag Chand and Tilak Raj caused two injuries on the head of Lachhman Dass. All the petitioners caused further blows to Hans Raj, his brother Lachhman Dass and Raj Rani. The occurrence was witnessed by Karam Chand and Mohna Ram of village Bhavdeen. After the incident the injured were removed to the hospital at Sirsa where they were medically examined. The injury on the head of Raj Rani was found grievous after Xray examination. One of the injuries found on the person of Lachhman Dass also grievous. At the instance of Hans Raj a case was registered against the petitioners and after investigation all the petitioners except Budi Ram and Bag Chand were challenged. Names of Budi Ram and Bag Chand were shown in column No.2 of the report under Section 173 Cr.P.C.

An application was moved in the trial Court for summoning Bag Chand and Budi Ram. The learned Additional Sessions Judge, Sirsa, after perusing the police report and hearing both the sides, found that primafacie Budi Ram and Bag Chand also participated in this occurrence along with remaining four assailants and their participation was established in view of the statements of the three injured, namely, Hans Raj, Raj Rani and Lachhman Dass as, well as the eye witnesses i.e. Karam Chand and Mohna Ram. They were, therefore, ordered to be summoned to face trial along with the other accused. The petitioners have assailed this order dated 25.2.1992.

On 7.4.1992 the parties were heard on charge and the learned Additional Sessions Judge passed order that a charge under Sections 452, 307, 326, 324, 323, 148 read with Section 149 Indian Penal Code be framed against the petitioners.

The petitioners alleged that the learned Additional Sessions Judge had not recorded any evidence enabling him to summon Budi Ram and Bag Chand under Section 319 of the Code of Criminal Procedure. So, the summoning order was illegal and was liable to be quashed. It was further contended that charge under Section 307 Indian Penal Code was wrongly framed as no case was made out against any of the petitioners under Section 307 Indian Penal Code. The maximum intention attributable to the petitioners was of teaching a lesson to the complainant side or causing of hurt and they were not liable for an offence of abetting the murder. Regarding first information report it was pleaded that, that was motivated and Hans Raj wanted to put pressure on the petitioners with regard to the eviction proceedings pending against his father. Bag Chand was the attorney of Raj Kumar with respect to the land which was in possession of father of Hans Raj and in fact Hans Raj was not tenant of any land.

In the return filed by respondent No. 1 it was maintained that Lachhman Dass sustained eight injuries out of which three were caused by sharp edged weapon and one of the injuries caused with the sharp edged weapon was declared grievous. Similarly one injury sustained by Raj Rani was declared grievous and it was caused with a sharp edged weapon. The doctor found this injury as dangerous to life. It was further pleaded that all the petitioners were specifically named in the first information report and their participation in the commission of the crime was primafacie established by the statements of the injured and eyewitnesses recorded under Section 161 Cr.P.C. Bag Chand and Budi Ram were, therefore, rightly summoned to stand trial with the rest of the petitioners.

I have heard the learned counsel for the parties.

It was urged on behalf of the petitioners, that the order Annexure P/2 could not be sustained as the two petitioners Bag Chand and Budi Ram could not be summoned to stand trial with the rest of the petitioners under Section 319 Cr.P.C. without recording evidence. Section 319 provides that wherein in the course of any enquiry 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 persons could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. But in the instant case, the two petitioners were summoned to stand trial without recording any evidence. This contention of the learned counsel does not hold good as under Section 193 Cr.P.C. the trial Court can take cognizance of an offence after taking into notice all accusations and after being satisfied that the allegations made in the complaint or police report, if proved, would constitute an offence, and in this way, can summon the person whose complicity in the commission of the crima can primafacie be gathered from the material available on record. In Kishun Singh v. State of Bihar, 1993(1) Recent Criminal Reports 647 it was held that where Sessions Court exercised powers wrongly under Section 319 Cr.P.C. though the power could be exercised by the Court under Section 193 Cr.P.C. the order was not illegal. Once it is found that power exists in the statute, the exercise of power under wrong provisions will not render the order illegal. In the instant case the learned Additional Sessions Judge after going through the police report and the statements of the witnesses was of the view that primafaice Budi Ram and Bag Chand participated in the commission of the crime, and, thus summoned them to stand trial with the other accused. The order is quite legal and is not liable to be quashed.

So far as charge under Section 307 Indian Penal Code is concerned, Lachhman Dass sustained eight injuries out of which one caused with sharp edged weapon was found grievous. The injury on the head of Raj Rani which too was an incised injury was grievous. On 18.6.1991 opinion of the doctor was sought with respect to this injury and he opined that the injury could prove dangerous to life if the patient was not hospitalised in time. Primafacie the court found that the petitioners were liable for an offence under Section 307 Indian Penal Code. The case is yet at an initial stage and the prosecution is to examine the doctor who will be in a position to clarify regarding the exact nature of the injuries. The allegations made in the first information report clearly make out that there was some dispute regarding land between the parties and the petitioners went to the house of the complainant armed with various weapons and caused injuries. The genuineness of the allegations or the motive for the same it not to be gone into at this stage and primafacie the F.I.R. does not suffer from any infirmity. I find no merit in this petition and dismissed the same.