Surinder @ Chhinda vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal revision and has been directed against the order dated 8.2.1995 passed by the Court of Additional Sessions Judge, Jalandhar, who allowed the application of the prosecution under Section 319 Cr.P.C. and ordered that petitioner Surinder @ Chhinda be arrayed as an accused along with Swaran Singh and Bhajan Singh.

A copy of F.I.R. No. 92 dated 22.7.1993 under Section 15 of the N.D.P.S. Act was registered against the present petitioner and accused Swaran Singh and Bhajan Singh in Police Station Shahkot. During the course of investigation, the present petitioner was found innocent, but challan under Section 15 of the Act was submitted against Swaran Singh and Bhajan Singh who were charge sheeted. The challan was sent to the Court of Magistrate, who committed Swaran Singh and Bhajan Singh to the Court of Sessions in order to face the trial. The charge under Section 15 of the Act was even framed against Swaran Singh and Bhajan Singh. When the examinationinchief of PW Darshan Singh was recorded, at that stage the State made an application under Section 319 Cr.P.C. and vide impugned order the learned Additional Sessions Judge summoned the present petitioner under Section 319 Cr.P.C. The impugned order is quoted as below :

"PW Darshan Singh and ASI Kuldip Singh are present but the Addl. P.P. has moved an application under Section 319 Cr.P.C. to summon Surinder Singh alias Chhinda s/o Buta Singh, r/o Bundanwal as an accused. It is submitted by him that the aforesaid Surinder Singh alias Chhinda was driving the tractortrolley from which 12 bags of poppy husk were recovered. Of course, Surinder Singh was arrested in this case, but later on he was shown in column No. 2 in the report submitted under Section 173 Cr.P.C. I have gone through the file of the case and also the statement of S.I. Darshan Singh PW3. Admittedly, the evidence was procured by the police against the said Surinder Singh alias Chhinda. From the report under Section 173 Cr.P.C. and the documents submitted therewith and also from the examination of PW3, I am satisfied that it does appear that aforesaid Surinder alias Chhinda did commit offence for which the present accused have been charged. Surinder Singh alias Chhinda can be tried together with the present accused. Accordingly, this application is allowed and aforesaid Surinder Singh alias Chhinda is ordered to be summoned as an accused through nonbailable warrants of arrest for 16.3.95. S.I. Darshan Singh and ASI Kuldip Singh witnesses present are discharged for the time being."

Aggrieved by the said order, Shri Surinder alias Chhinda has filed the present revision.

I have heard Shri Jasbir Singh, Advocate, on behalf of the petitioner, Shri I.P.S. Sidhu, AAG for the State and Shri A.S. Gill, Advocate on behalf of respondents No. 2 and 3.

The leading contention of the learned counsel for the petitioner is that the application of the prosecution under Section 319 Cr.P.C. was maintainable only after the complete examination of Shri Darshan Singh or any other prosecution witness. When only the examinationinchief of Darshan Singh was recorded and at that stage the application was not legally maintainable. In support of his contention the counsel for the petitioner relied upon Jatinder Singh v. State of Punjab, 1996(3) C.C. Cases 77 (HC), where it was held that if the summoning order has been based merely on the basis of the examination inchief of a witness without giving opportunity to the opposite party, the statement i.e. examinationinchief is not legally admissible in evidence. His Lordship was further pleased to observe that it would have been a different matter if an opportunity to crossexamine had been given but the same was not availed of by the adverse party. No law to the contrary has been cited by the counsel for the State, Resultantly, the impugned order dated 8.2.1995 is hereby set aside with the observations that it will be always open for the prosecution to move a fresh application under Section 319 Cr.P.C. after recording the complete statements of SI Darshan Singh and ASI Kuldip Singh or any other prosecution witness and in that eventuality it will be open for the trial Court to pass a fresh order under Section 319 Cr.P.C. in case that Court considers fit to invoke those provisions. The present revision stands allowed.

The parties through their counsel are directed to appear before the trial Court on the next date.