SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Surain Singh vs State Of Punjab And Anr on 22 December, 2017

CRR-3371-2016 -1-
CRR-490-2017

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

(1)
Crl. Revision No.3371 of 2016(OM)
Date of Decision:December 22, 2017

Surain Singh
…Petitioner

Versus

State of Punjab and others

…Respondents

(2)

Crl. Revision No.490 of 2017(OM)

Harnam Chand
…Petitioner

Versus

State of Punjab

…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Kamal Narula, Advocate
for the petitioner in CRR No.3371 of 2016.

Mr. S.P.S. Sidhu, Advocate
for the petitioner in CRR No.490 of 2017.

Mr. Davinder Bir Singh, DAG Punjab.

Mr. Gurpreet Jayia, Advocate
for respondent No.2.

********

JAISHREE THAKUR, J. (Oral)

Through this order, this court shall dispose of above captioned

two criminal revisions i.e. Criminal Revision No.3371 of 2016 titled as

1 of 11
24-12-2017 07:24:11 :::
CRR-3371-2016 -2-

CRR-490-2017

“Surain Singh vs. State of Punjab and others” and Criminal Revision

No.490 of 2017 titled as “Harnam Chand vs. State of Punjab” as the

same arisen out of the common order.

2. In both the above-said criminal revisions, the order under

challenge is order dated 02.07.2016 passed by learned Additional Sessions

Judge, Fazilka, whereby the application filed by the prosecution under

Section 319 Cr.P.C. for summoning of additional three accused namely

Kuldeep Chand, Harnam Dass alias Chandi and Jeet Ram was partly

allowed and only Kuldeep Chand and Harnam Chand were ordered to be

summoned to face the trial, whereas, Jeet Ram was not summoned, as an

accused. In CRR No.3371 of 2016, the complainant-petitioner has assailed

the impugned order, on the ground that there are specific allegations against

Jeet Ram and without appreciating the material on record, the trial court has

not issued summoned Jeet Ram. Whereas, in CRR No.490 of 2017, Harnam

Chand has challenged the impugned order, on the ground that no new

material was placed on record of the trial court, which could justify his

summoning under Section 319 Cr.P.C.

3. The brief facts of the case are that FIR No.196 dated

14.12.2015, under Section 366, 366-A, 376, 120-B of Indian Penal Code

came to be registered at Police Station Sadar Jalalabad, District Fazilka, on

the statement of Surain Singh, in which he stated that he had five children,

three are sons and two daughters and youngest of the five was his daughter

Veena Rani. His mother Milko Bai was looking after his children. On

08.12.2015, he along with his sons went to the brick kiln to prepare the

bricks and his mother Milko Bai and daughter Veena Rani were present at

the house. At about 11.30 a.m. their neighbour Manjit Kaur wife of Kuldeep

2 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -3-

CRR-490-2017

Chand came at their house and took his daughter Veena Rani to her house

on the pretext of plucking vegetable. When he came back at his house in the

evening, then his mother Milko Bai disclosed that his daughter had been

taken bu Manjit Kaur. Thereafter, he visited the house of Kuldeep Chand

and others to inquire about his daughter, but they were not present in their

house. It was mentioned that Kuldeep Chand husband of Manjit Kaur, her

brother Jassu and one Harnam Chand @ Chandi Ram were already present

there and they in connivance with each other made his daughter sit in the car

of Harnam Chand. It is alleged by the complainant that Manjit Kaur,

Kuldeep Chand had lured his daughter on the pretext of solemnizing her

marriage with her brother Jassu.

4. After registration of the FIR, the matter was investigated and

prosecutrix was got recovered. the statement of the prosecutrix was

recorded under Section 164 Cr.P.C. on 24.12.2015 by the JMIC Jalalabad

immediately after she managed to escape from the accused who had taken

her to Uttar Pradesh. After completing the investigation, challan was

presented by the Investigating Agency only qua Manjit Kaur and Jaswinder

Chand @ Jassu, whereas Kuldeep Chand, Harnam Dass alias Chandi Ram

and Jeet Ram were kept in column No.2. After framing the charges,

prosecutrix appeared in the witness box as PW1 and her examination-in-

chief was recorded and cross-examination was partly recorded and further

cross-examination was deferred.

5. It is thereafter that an application under Section 319 Cr.P.C.

came to be filed for summoning Kuldeep Chand son of Lachman Dass,

Harnam Dass alias Chandi Ram son of Mall Ram and Jeet Ram son of

Salamat Ram as additional accused to face trial on the ground that all the

3 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -4-

CRR-490-2017

five accused were named in the FIR lodged by the complainant and they

were also named in the statement of the prosecutrix under Sections 161 and

164 Cr.P.C. It is alleged by the prosecution that the three persons, who were

not challaned by the police, had actively participated in the crime, which is

duly corroborated by the prosecutrix.

6. The said application under Section 319 Cr.P.C. came to be

partly allowed by the learned trial court vide the impugned order dated

02.07.2016. It is the said order dated 02.07.2016 passed by the trial court

that has been assailed in both the criminal revisions before this court.

7. Mr. Kamal Narula, learned counsel appearing on behalf of

complainant-petitioner in CRR No.3371 of 2016 argued that the trial court

without appreciating the material available on record passed the impugned

order and has not issued summons against Jeet Ram as an accused, whereas,

there are specific allegations levelled against him and he played an active

role with the other co-accused.

8. Per contra, Mr. Gurpreet Jayia, learned counsel appearing on

behalf of respondent No.2-Jeet Ram in CRR No.3371 of 2016 argued that

there is no illegality in the impugned order dated 02.07.2016 passed by

learned Additional Sessions Judge, Fazilka, in not summoning Jeet Ram as

an accused, who has been named by the prosecutrix while appearing into the

witness box as PW-1. It is also argued that the impugned order so passed by

the trial court is well reasoned and no ground is made to interfere with the

same.

9. On the other hand, Mr. S.P.S. Sidhu, learned counsel appearing

on behalf of petitioner-Harnam Chand in CRR No.490 of 2017 argued that

after the registration of the FIR, a detailed investigation was conducted and

4 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -5-

CRR-490-2017

challan was presented against Jaswinder Chand @ Jassu and Manjit Kaur

wife of Kuldeep Chand. During investigation, it was found that Harnam

Chand-petitioner has been falsely implicated in the present case due to

animosity between warring factions in the village, as he was earlier

Sarpanch of the village.

10. I have heard learned counsel for the parties and perused the

record of the case.

11. The learned trial court by its order dated 02.07.2016 partly

allowed the application filed by the prosecution under Section 319 Cr.P.C.

with the following observations;-

“I have gone through the statement of the complainant

Surain Singh, on the basis of which FIR in question

was lodged. Perusal of his statement shows that only

the names of Kuldeep Chand and Harnam Dass @

Chandi Ram have come in his statement and even in

the initial statement of the prosecutrix recorded by the

I.O., only the names of Kuldeep Chand and Harnam

Dass can be seen. Jeet Ram has not been named either

by the complainant Surain Singh or the prosecutrix in

their initial statements, as such, no ground is made out

for summoning Jeet Ram, who has been named by the

prosecutrix at the time of appearing into the witness

box as PW-1 as the said statement seems to be the

result of after thought. In view of the documents on file

and the statement of PW-1, Kuldeep Chand and

Harnam Dass are ordered to be summoned to face

5 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -6-

CRR-490-2017

trial for offence under Section 363/366-A/376 IPC for

16.07.2016″.

From the above observations given by the trial court, it is clear

that the only basis for not summoning Jeet Ram as an accused under Section

319 Cr.P.C. was that in the initial statement Jeet Ram has not been named

either by the complainant or the prosecutrix and it is only at the time of

appearing in the witness box as PW-1, he has been named by the

prosecutrix. Whereas, the grievance of complainant-petitioner is that the

impugned order has been passed by the trial court, without appreciating the

material available on record, since Jeet Ram has played an active role with

other co-accused in the commission of crime.

12. This court has gone through the statement of Surain Singh, on

the basis of which the instant FIR came to be registered, in which only

Manjit Kaur wife of Kuldeep Chand, Kuldeep Chand, Jassu and Harnam

Chand @ Chandi Ram have been named as accused and consequently, on

the basis of the said statement, the FIR was registered only against the

above-said four persons.

13. What is interesting to see here is the statement of the

prosecutrix recorded under Section 164 Cr.P.C., before JMIC, Jalalabad,

after she had been recovered on 24.12.2015. In her initial statement itself

recorded before the Magistrate, the prosecutrix leveled allegations that

when she reached the house of Manjit Kaur, there Chandi Ram alias

Harnam Chand, Jeet Ram, Kuldeep Chand and Jassu were already present.

It is inter alia stated by the prosecutrix that Manjit Kaur prepared and

served tea and all of them had it, and after having tea, she became dizzy.

Chandi Ram and Jeet Ram made her sit in a car. She remained conscious

6 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -7-

CRR-490-2017

for about 4-5 minutes and thereafter, she became unconscious. After that

she does not know where they took her. It was alleged by the prosecutrix

that these people took her 3 /4 nights in the car to different places and Jassu

took her in a different room and committed illegal act. One day, she heard

Chandi Ram talking on mobile phone that her price had been settled and she

will be sold . Thereafter, she secretly left that place and with the help of 4-5

persons reached the house of her aunt in Jalalabad City. In her above-said

statement recorded before the Magistrate under Section 164 Cr.P.C., the

prosecutrix apart from naming Manjit Kaur wife of Kuldeep Chand,

Kuldeep Chand, Jassu and Harnam Chand @ Chandi Ram, had also named

Jeet Ram as a perpetrator, who actively participated in the crime. Moreover,

while appearing into the witness box as PW-1, the prosecutrix named all the

five persons as accused.

14. Section 319 of Cr.P.C. deals with the power of the court to

proceed against other persons appearing to be guilty of offence. Section 319

of Cr.P.C. read 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 has 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

7 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -8-

CRR-490-2017

may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under

arrest or upon a summons, may be detained by such Court

for the purpose of the inquiry into, or trial of, the offence

which he appears to have committed.”

Power under Section 319 Cr.P.C. is a discretionary and an

extra-ordinary power. It is to be exercised sparingly and only in those cases

where strong and cogent evidence occurs against a person from the evidence

led before the court that such power should be exercised and is not to be

exercised in a casual and cavalier manner.

15. The impugned order has also been challenged by Harnam

Chand @ Chandi Ram, on the ground that after the registration of the FIR, a

detailed investigation was conducted and it was found that Harnam Chand

has been falsely implicated in the present case due to animosity between

warring factions in the village, as he was earlier Sarpanch of the village.

16. This court had also called for the inquiry report submitted by

DSP, Sub Division, Jalalabad. A perusal of the said inquiry goes on to show

that DSP, Sub Division, Jalalabad has recommended that during inquiry,

Harnam Chand @ Chandi Ram, Kuldeep Chand and Jeet Ram were found to

be innocent, while stating that Jaswinder Chand @ Jassu and Manjit Kaur

are the real accused in the instant case. As per the inquiry report submitted,

on 08.12.2015, accused Harnam Chand @ Chandi Ram had visited the farm

of Kamal Dhurian at village Jodha Bhaini in connection with the affairs of

his land, whereas accused Kuldeep Chand had gone for the work of labour

on the farm on 08.12.2015. Further, Jeet Ram was present at his kiln at

8 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -9-

CRR-490-2017

Village Naju Shah, District Ferozepur on the day of incident in connection

with his business. Whereas, in her statement recorded before the Magistrate

under Section 164 Cr.P.C., the prosecutrix has leveled specific allegations

that when she reached the house of Manjit Kaur, there Chandi Ram alias

Harnam Chand, Jeet Ram, Kuldeep Chand and Jassu were already present.

It is inter alia stated by the prosecutrix that Manjit Kaur prepared and

served tea and all of them had it, and after having tea, she became dizzy.

Chandi Ram and Jeet Ram made her to sit in a car. She remained conscious

for about 4-5 minutes and thereafter, she became unconscious. After that

she did not know where they took her. It was alleged by the prosecutrix that

these people took her 3 /4 nights in the car on different places and Jassu

took her in different room and committed illegal act.

17. In Hardeep Singh vs. State of Punjab and others, (2014) 3

Supreme Court Cases 92, the Hon’ble Supreme Court has observed that the

object of Section 319 of Cr.P.C. is that a real culprit should not get away

unpunished. This is part of concept of “fair trial”. Provision is based on the

doctrine judex damntur cum nocens absolvitur (Judge is condemned when

guilty is acquitted). Court should give full effect to words used in the

provision. Degree of satisfaction for invoking Section 319 Cr.P.C. should be

of more than a prima facie case as exercised at time of framing of charge,

Where the investigating agency for any reason does not array one of the real

culprits as an accused, the court is not powerless in calling the said accused

to face trial.

18. In the instant case, the substance of the statement of the

prosecutrix was recorded before Magistrate at Jalalabad under Section 164

Cr.P.C. on 24.12.2015, where she named Jeet Ram And Harman Chand. She

9 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -10-

CRR-490-2017

also deposed on the same lines while appearing into the witness box as PW-

1. The trial court has erred in holding that there is an improvement and the

name of Jeet Ram has been added as an after thought. Even though the

complainant may not have mentioned the name of Jeet Ram in the FIR, it

cannot be lost sight of that the FIR is not an encyclopedia of the entire facts

and is an initial statement only to set the criminal process in motion. How

would the complainant know who all were involved in the commission of

the offence? It is settled principle that the statement recorded by the

Investigating Officer under Section 161 Cr.P.C., has lesser value than the

statement recorded before the Magistrate under Section 164 Cr.P.C. The

trial court, while passing the impugned order partly allowing the application

under Section 319 Cr.P.C. did not take note of the statement recorded by the

prosecutrix under Section 164 Cr.P.C. in which, Jeet Ram has also been

named as a culprit. So from this perspective, the order of the trial court in

not summoning Jeet Ram as an accused, does not seem to be justified.

19. Where the investigating agency for any reason does not array

one of the real culprits as an accused, the court is not powerless in calling

the said accused to face trial. It is not uncommon that the real accused, at

times, get away by manipulating the investigation and/or the prosecuting

agency. The desire to avoid trial is so strong that an accused makes effort at

time to get himself absolved even at the stage of investigation or inquiry,

even though he may be connected with the commission of offence. Reliance

in this regard has been placed on the decision of the Hon’ble Supreme Court

in Hardeep Singh vs. State of Punjab and others (supra).

20. In view of the above discussion, this court is of the considered

view that the impugned order 02.07.2016 to the extent of disallowing the

10 of 11
24-12-2017 07:24:12 :::
CRR-3371-2016 -11-

CRR-490-2017

application filed by the prosecution under Section 319 Cr.P.C. in not

summoning Jeet Ram to face trial as an accused is liable to be set aside.

Whereas, no ground is made out to set aside the impugned order qua

Harnam Chand @ Chandi Ram, once he has been specifically named in the

FIR, thereafter by the prosecutrix in her statement recorded by Magistrate

under Section 164 Cr.P.C. and further in the statement recorded by the

prosecutrix as PW-1 before the trial court.

21. In view of the foregoing discussion and ratio of law, Criminal

Revision No.490 of 2017 filed by petitioner-accused Harnam Chand @

Chandi Ram is hereby dismissed. Whereas, Criminal Revision No.3371 of

2016 is allowed by holding that prima facie there is more than sufficient

material available on record to summon Jeet Ram as an accused to face trial

along with his co-accused.

22. It is made clear that anything observed by this hereinabove

shall have no affect on the merits of the case, which is only for the purpose

of deciding the criminal revisions.

(JAISHREE THAKUR)
December 22, 2017 JUDGE
vijay saini

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

11 of 11
24-12-2017 07:24:12 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Group Rules, If You agree then JOIN HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh