Sewa Devi vs Rohtash and Others

Adarsh Kumar Goel, J.—Kailash Chand deceased had made a statement before the police, which was treated as dying declaration, to the

effect that Rohtash son of Rajbir, Raghbir, Rambir and Kaptan threw acid on him. On this statement the investigation was conducted, but instead

of challaning any of the said four persons, the investigating agency challaned Rohtash son of Ranjit Singh and Rajbir Singh. During trial, Sewa Devi,

widow of the deceased, appeared as PW- 1. She again named the said four persons as having sprinkled acid on the said witness, her husband

Kailash Chand and her son Rakesh. In view of this statement, an application u/s 319 of the Code of Criminal Procedure (for short, the Code) was

filed for summoning of the four accused, who were originally named. The said application has been dismissed on the ground that since four persons

sought to be summoned were not arraigned as accused, they could not be summoned as additional accused. Reference was made to the judgment

of this Court in Amar Singh and Another Vs. The State, and a judgment of the Rangoon High Court in Nga Sar Kee v. The King, AIR 1939 Ran

390.

Hence this petition.

Counsel for the petitioner submits that the view taken by the learned trial Court is based on incorrect appreciation of provisions of Section 319

of the Code, which permit summoning of a person, who may not be an accused for trial, along with the accused, if it appears to the Court that such

a person had also committed the offence.

It is pointed out that the judgments in Amar Singh and Nga Sar Kee (supra) were considered and distinguished in a DB judgment of this Court

in State of Punjab Vs. Wassan Singh and Others, . The said judgments were distinguished with the observation that the evidence against both sets

of accused being not mutually exclusive, the newly summoned accused could be tried together with the accused already facing the trial, whereas in

Amar Singh''s case (supra), according to one set of witnesses, the deceased had been murdered at a particular time and place by six accused while

according to other set of witnesses, the deceased was murdered by seventh accused. The police filed separate challans. Similar was the position in

Nga Sar Kee''s case (supra) and in both the said cases, two or more prosecutions were launched and it was in that context that question of joint

trial arose. It was observed that situation will be different where prosecution has put in only one challan and there was only one trial and in such a

situation, the newly summoned accused could be tried along with the accused, who is already facing trial. It was observed that there was no

occasion for joint trial in technical sense.

I have heard counsel for the parties.

Learned counsel for the accused sought to be summoned has not been able to distinguish the DB judgment of this Court, which has been relied

upon by learned counsel for the petitioner. The view taken in the DB judgment appears to be clearly applicable to the present case, when only on

challan has been presented by the prosecution. Once from the evidence brought before the Court, there was material to summon additional

accused, there was no bar to summoning of the said additional accused on the only ground that prosecution had challaned persons other than

those, who were originally named by the author of the FIR or by the witness appearing before the Court.

In view of the above, the trial Court is not justified in rejecting the application for summoning on the only ground that in the challan filed, the

accused sought to be summoned have not been challaned.

In view of the above, the impugned order is set aside and it is directed that the trial Court will pass a fresh order in accordance with law.

The petition is disposed of.

Order accordingly.