Ramphal vs State of Haryana and Others

Harbans Lal, J.—This revision is directed against the order dated 23.3.2009 passed by the court of learned Sessions Judge, Hisar whereby he dismissed the application moved u/s 319 of Cr.P.C. for summoning Jogender and Sikandar as additional accused.

The facts in brief are that Anita daughter of the petitioner was married with Bijender on 27.11.2006 as per Hindu rites and ceremonies. The respondents Jogender and Sikandar brothers of the husband of the deceased alongwith Bijender husband, Rajinder brother-in-law and Roshni Devi mother-in-law started harassing the deceased saying that they did not like her. She was beaten up by all the five accused including Jogender and Sikandar respondents. On 17.6.2008 at about 8.00 Anita informed the petitioner that these five persons were planning to kill her. Rahul having arrived at the spot saw that accused Rajender, Roshni, Jogender and Sikandar had pressed the deceased on the bed and Bijender caused an injury on her her thigh. Out of fear, Rahul young boy ran away from there. In the meanwhile, the petitioner also reached there.

I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.

The learned Counsel for the petitioners stressing his every nerve maintained that a glance through the F.I.R. Annexure P-1 would reveal that the respondents Jogender and Sikandar have been specifically named and specific roles have been attributed to them even prior to the killing as also in killing the deceased. They were placed in column No. 2 of the report submitted u/s 173. Rahul an eye witness when examined as PW-10 stated in his statement Annexure P-2 that even prior to her death, the deceased was beaten up for dowry and she was being disliked by the accused including Jogender and Sikandar respondents. It is further revealed that Bijender husband of the deceased had inflicted a blow with the broken bottle of whisky upon thigh of Anita, who when cried the said witness Rahul got frightened and returned back to Hansi. The learned Sessions Judge has wrongly held that the accused had filed certain documents to show that Jogender respondent was employed as lecturer and was deputed as Deputy Superintendent in the examination from 16.5.2008 to 17.6.2008. He was also permitted to produce photo copy of the certificate of the Centre Superintendent of Government College, Hisar to the effect that he remained on duty in the morning sessions from 16.5.2008 to 17.6.2008 though at the stage of summoning of an additional accused, the accused cannot be permitted to produce any document. Still worse, the learned Sessions Judge has considered the plea of alibi at the stage of summoning of an additional accused u/s 319 of Cr.P.C. This plea being a disputed question of fact, can be proved only during the course of trial. The proceedings u/s 319 of Cr.P.C. are summary in nature and only an inquiry has to be held with regards to the fact as to where there was sufficient evidence for summoning the persons as additional accused. Furthermore, at such a stage, only the evidence has to be taken into consideration whereas the learned Sessions Judge has discussed the defence of the accused as well. In these premises, the impugned order is liable to be set aside.

As against this, the learned Counsel for the respondents Jogender and Sikandar maintained that as a matter of fact, the documents on which the learned trial Court has relied upon were collected by the Investigator during the investigation and as per the same, prima facie no offence is made out and that being so, the impugned order cannot be faulted with in any manner.

I have well considered the rival contentions.

In paragraph No. 5 of the impugned order, it has been mentioned that "the learned for the accused has filed certain documents to show that one of the persons, who is sought to be summoned, i.e. Jogender was employed as a Lecturer and he was deputed as Deputy Superintendent in the Exams from 16.5.2008. He has also produced a photocopy of certificate of one Karambir Singh, Centre Superintendent of Government College, Hisar to the effect that this Jogender Singh remained on duty in the morning sessions from 16.5.2008 to 17.6.2008. As per another document, the morning session was from 8.00 a.m." In the succeeding paragraph, it has been mentioned that " With regard to another person, who is sought to be summoned i.e. Sikandar Kumar, he was doing B.Ed apart from JBT and copy of his attendance sheet has been filed. In view of this attendance sheet, he was absent on 16.6.2008, but was present on 17.6.2008." It is pertinent to point out here that when an application is moved u/s 319 of Cr.P.C. the same is to be decided on the basis of the oral evidence of the witness examined by the prosecution. However, in view of Mohd. Shafi v. Mohd. Rafiq and Anr. 2007(2) Recent Criminal Reports (Criminal) 762, "for the said purpose, the court concerned may also like to consider other evidence." The learned Counsel who is appearing on behalf of the accused already facing trial has no right or locus standi to argue on behalf of the persons sought to be summoned as additional accused by producing documentary evidence, if any, operating in their favour. Paragraph 4 of the order under challenge reads in the following terms:

I have heard Sh. Dalip Singh, Public Prosecutor for the State assisted by Sh. J.S. Malhi counsel for the complainant and Sh. M.S. Nain, counsel for the accused, who are already facing trial.

It has been manifested in the language of this paragraph that Mr. M.S. Nain had put in appearance on behalf of the accused who were already facing trial. In the opening sentence of para 5 of the impugned order, it has been mentioned with specificity that "learned Counsel for the accused has filed certain documents." It is beyond comprehension as to under which provision of law, the learned trial Court had permitted Mr. M.S. Nain, Advocate to argue on behalf of Jogender as well as Sikandar respondents who were sought to be summoned as additional accused by producing certain documents on their behalf. When the trial Court happens to decide an application moved u/s 319 of Cr.P.C. i.e. a stage between the court and the Public Prosecutor and not between the court and the learned Counsel appearing on behalf of the accused who are already facing trial. The court on the basis of the evidence on record has to record its satisfaction as to whether or not the case for summoning the persons shown in column No. 2 of the report submitted u/s 173 of Cr.P.C. is prima facie made out or not. To put it differently the learned Court is to record that if the evidence adduced by the prosecution goes unrebutted will lead to conviction of the person sought to be summoned as additional accused. In Lok Ram v. Nihal Singh 2006(2) Recent Criminal Reports (Criminal) 707, the Hon''ble Supreme Court while summing up law on Section 319 of Cr.P.C. inter-alia observed that "a person named in FIR, but not charge sheeted can also be added to face trial only on basis of evidence adduced before court and not on the basis of materials available in the charge sheet or in case diary. Trial Court has jurisdiction to add a person as accused at any stage of proceedings. It will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. This is by virtue of legal fiction created by Section 319(4)(a)(b)." Reverting back to the instant one, the respondents Jogender and Sikandar are named in the F.I.R. The charge-sheet has not been filed their-against. In view of the afore-extracted observations the trial Court could not rely upon the documents collected if any during investigation in favour of the said respondents nor Mr. M.S. Nain could argue on their behalf on the dint of such documents. He being not their counsel could not argue on their behalf not these respondents could be allowed to place any document on the record. To me it appears that the learned trial Court has discussed the case of the said respondents in the impugned order as if it was disposing of the matter finally. The plea of alibi has also been touched. It is axiomatic from the impugned order that the learned Trial Court has virtually travelled beyond the scope of Section 319 of Cr.P.C. Sequelly, the impugned order is set aside with a direction to the learned trial Court to reconsider the application moved u/s 319 of Cr.P.C. in the light of the observations rendered hereinbefore. In these terms, this petition is disposed of.

Since the revision has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of.