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Amit Sharma vs State Of Punjab And Anr on 1 August, 2019

CRM-M-5129-2017 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M-5129-2017 (OM)
Date of decision: 01.08.2019

Amit Sharma
….Petitioner

Versus

State of Punjab and another
….Respondents

CORAM: HON’BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Puneet Sharma-I, Advocate
for the petitioner.

Mr. Jagmohan Ghumman, DAG, Punjab.

Mr. Mohd. Yousaf, Advocate
for respondent No.2.

******

ARVIND SINGH SANGWAN, J. (Oral)

Prayer in this petition is for setting aside the order dated

18.04.2016 (Annexure P-10) passed by the trial Court, vide which, while

allowing an application filed by the prosecution under Section 319 of the

Code of Criminal Procedure, 1973 (for short ‘SectionCr.P.C.’), the petitioner had

been summoned as additional accused as well as the order dated 11.11.2016

(Annexure P-12) passed by the revisional Court, vide which the revision

petition filed by the petitioner was dismissed.

Brief facts of the case are that respondent No.2-complainant

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Gopi Chand gave a complaint dated 03.01.2013 (Annexure P-1), only

against Chander Mohan Sharma, brother of the petitioner, with the

allegations that he had paid an amount of Rs.9.00 lacs for the purchase of a

house, however, neither the amount was returned nor the sale deed was

executed in his favour and even a cheque of Rs.2.00 lacs given by accused

Chander Mohan Sharma was dishonoured. Thereafter, an inquiry was

conducted by Additional Deputy Commissioner of Police, Crime, Jalandhar

and as per the inquiry report dated 08.01.2013 (Annexure P-2), it was found

that it is a dispute regarding landing of money between complainant Gopi

Chand and accused Chander Mohan Sharma. Thereafter, the complainant

gave another application dated 22.07.2013 (Annexure P-3) to the

Commissioner of Police, Jalandhar against Chander Mohan Sharma alone

and the petitioner was not named. An inquiry was conducted by ADCP,

Jalandhar, in which statement of the complainant was recorded on

14.09.2013 (Annexure P-4) and in this statement also, respondent No.2-

complainant has named Chander Mohan Sharma as the sole person, who

had allegedly cheated him. One more representation was given by the

complainant on 14.10.2013 (Annexure P-5) levelling allegations against

Chander Mohan Sharma alone and FIR No.223 dated 25.10.2013 (Annexure

P-6) under Sections 406, Section420 of the Indian Penal Code (for short ‘SectionIPC’) was

registered at Police Station Division No.5, Jalandhar.

After conducting the inquiry, the police submitted the report

under Section 173 Cr.P.C. on 23.12.2013 (Annexure P-7) against Chander

Mohan Sharma alone and the petitioner namely Amit Sharma was neither

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kept in column No.4 nor in column No.2 of this report, as at no stage, the

complainant has levelled any allegations against the petitioner.

The trial Court, thereafter, framed the charges against Chander

Mohan Sharma under Sections 406 and Section420 IPC and complainant Gopi

Chand appeared as PW2 and for the first time, he named the petitioner as a

person, to whom he met along with Chander Mohan Sharma at Jalandhar

Cantt. Railway Station, in which the petitioner allegedly told him that he is

working as property dealer and would arrange a plot for him and both were

paid Rs.1.50 lacs.

Thereafter, the prosecution moved an application under Section

319 Cr.P.C. for summoning the petitioner as additional accused with the

allegations that even the petitioner has cheated and defrauded the

complainant. The trial Court, vide impugned order dated 18.04.2016

(Annexure P-10), summoned the petitioner on the basis of statement of the

complainant, who appeared as PW2. The petitioner preferred a revision

petition before the Court of Sessions and the same was dismissed, vide

impugned order dated 11.11.2016 (Annexure P-12). The operative part of

the order dated 11.11.2016 reads as under: –

“I have considered the respective contentions and gone

through the file carefully.

Although, name of accused Amit has not been

mentioned by the complainant in the FIR nor he deposed

against him during enquiry conducted by the police, however,

while appearing as PW2 in the Court, he categorically stated

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that he paid Rs.1½ lacs to Chander Mohan Sharma and his

brother Amit at Railway Station, Jalandhar Cantt, for the

purchase of house. Amit also told the complainant that he is

doing the business of sale and purchase of property alongwith

his brother and they assured the complainant that both the

brothers shall get purchase a good house for him at Jalandhar.

As such, Chander Mohan Sharma and Amit induced the

complainant to deliver a sum of Rs.9 lacs dishonestly and

fraudulently. Moreover, revisionist/accused is brother of

accused Chander Mohan Sharma already facing trial before

the Court. Therefore, there is possibility that both the accused

in connivance with each other defrauded the complainant. The

authorities relied upon by learned counsel for the complainant

with regard to power of the Court to summon the accused, are

fully applicable to the facts of this case. As such, there is no

illegality in the impugned order dated 18.4.2016 and the same

does not call for any interference by this Court.

Consequently, the present revision is liable to be and is

hereby dismissed.”

Learned counsel for the petitioner has argued that a perusal of

the documents i.e. original complaint given to the police (Annexure P-1),

report (Annexure P-2) and (Annexure P-5) shows that the complainant has

not named the petitioner as an accused in any manner. Even in the FIR,

which was registered on the statement of complainant, there is no reference

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of the petitioner that he, in conspiracy with his brother-accused Chander

Mohan Sharma, has cheated the complainant. A perusal of the report

submitted under Section 173 Cr.P.C. also shows that during the

investigation of this FIR, the complainant never recorded any

supplementary statement levelling any allegation against the petitioner. It is

further submitted that the challan was presented only against Chander

Mohan Sharma and the petitioner was not even kept in column No.4 or

column No.2 of the report under Section 173 Cr.P.C.

Learned counsel has referred to statement of the complainant,

who appeared as PW2 on 15.07.2014, wherein, for the first time, the

complainant made some improvements and stated that when he met Chander

Mohan Sharma at Jalandhar Cantt. Railway Station, the petitioner was there

along with him and petitioner Amit Sharma informed him that he is working

as property dealer and assured him that both of them can arrange a good plot

for him and he paid some amount to them. Except this, the complainant has

nowhere stated about role of the petitioner in the entire sequence of events,

in which he has stated that he had given the amount to accused Chander

Mohan Sharma on different dates, for the purpose of purchasing a house.

Learned counsel has further submitted that in view of the

above, both the Courts have wrongly summoned the petitioner by relying

upon the statement of complainant-PW2, who, for the first time, after a

period of about one and half year of filing of the complaint and the inquiries

conducted by the police authorities, has named the petitioner.

Learned counsel for the petitioner has relied upon a judgment

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of the Hon’ble Supreme passed in Criminal Appeal No.395 of 2019

(arising out of SLP (Crl.) No.4626 of 2017) titled as Sunil Kumar Gupta

and others Vs. State of Uttar Pradesh and others, decided on

27.02.2019, wherein it is held that a person should not be summoned as

additional accused on the mere statement of the complainant and while

summoning a person as additional accused, the Court should satisfy itself

that more than prima facie case is made out against such person, which is

more than mere probability of his complicity, to face the trial. The operative

part of this judgment reads as under: –

“Section 319(1) Cr.P.C. empowers the Court to proceed

against any person not shown as an accused if it appears from

the evidence that such person has committed any offence for

which such person could be tried together along with the

accused. It is fairly well settled that before the court exercises

its jurisdiction in terms of Section 319 Cr.P.C., it must arrive at

satisfaction that the evidence adduced by the prosecution, if

unrebutted, would lead to conviction of the persons sought to

be added as the accused in the case. In Hardeep Singh, the

Constitution Bench held as under:-

“105. Power under Section 319 Cr.P.C is a discretionary

and an extraordinary power. It is to be exercised

sparingly and only in those cases where the

circumstances of the case so warrant. It is not to be

exercised because the Magistrate or the Sessions Judge

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is of the opinion that some other person may also be

guilty of committing that offence. Only where strong and

cogent evidence occurs against a person from the

evidence led before the court that such power should be

exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case

is to be established from the evidence led before the

court, not necessarily tested on the anvil of cross-

examination, it requires much stronger evidence than

mere probability of his complicity. The test that has to be

applied is one which is more than prima facie case as

exercised at the time of framing of charge, but short of

satisfaction to an extent that the evidence, if goes

unrebutted, would lead to conviction. In the absence of

such satisfaction, the court should refrain from

exercising power under Section 319 CrPC. In Section

319 CrPC the purpose of providing if “it appears from

the evidence that any person not being the accused has

committed any offence” is clear from the words “for

which such person could be tried together with the

accused”. The words used are not “for which such

person could be convicted”. There is, therefore, no scope

for the court acting under Section 319 CrPC to form any

opinion as to the guilt of the accused.” [underlining

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added]

Observing that for exercising jurisdiction and its

discretion in terms of Section 319 Cr.P.C., the courts are

required to apply stringent tests, in SectionSarabjit Singh and

Another vs. State of Punjab and Another (2009) 16 SCC 46, it

was held as under:-

“21. An order under Section 319 of the Code, therefore,

should not be passed only because the first informant or

one of the witnesses seeks to implicate other persons(s).

Sufficient and cogent reasons are required to be

assigned by the court so as to satisfy the ingredients of

the provisions. Mere ipse dixit would not serve the

purpose. Such an evidence must be convincing one at

least for the purpose of exercise of the extraordinary

jurisdiction. For the aforementioned purpose, the courts

are required to apply stringent tests; one of the tests

being whether evidence on record is such which would

reasonably lead to conviction of the person sought to be

summoned.

22. ……. Whereas the test of prima facie case may be

sufficient for taking cognizance of an offence at the

stage of framing of charge, the court must be satisfied

that there exists a strong suspicion. While framing

charge in terms of Section 227 of the Code, the court

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must consider the entire materials on record to form an

opinion that the evidence if unrebutted would lead to a

judgment of conviction.

23. Whether a higher standard be set up for the purpose

of invoking the jurisdiction under Section 319 of the

Code is the question. The answer to these questions

should be rendered in the affirmative. Unless a higher

standard for the purpose of forming an opinion to

summon a person as an additional accused is laid down,

the ingredients thereof viz. (i) an extraordinary case, and

(ii) a case for sparingly (sic sparing) exercise of

jurisdiction, would not be satisfied.” [underlining

added]

Applying the above principles to the case in hand, in our

considered view, no prima facie case is made out for

summoning the appellants and to proceed against the

appellants for the offence punishable under Section 302 IPC.

As pointed out earlier, in the dying declaration, deceased

Shilpa has only mentioned the name of Chanchal @ Babita;

but she has not mentioned the names of others. In his

complaint lodged before the police on the next day i.e.

20.08.2012, Sudhir Kumar Gupta-PW-1 has stated that his

daughter Shilpa told him that Chanchal @ Babita and all

other people set her on fire after pouring kerosene. PW-1 has

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neither stated the names of the appellants nor attributed any

overt act. Likewise, in their evidence before the court, PWs 1

and 3 have only stated that Shilpa told them that Chanchal @

Babita and all others have set fire on deceased Shilpa. Neither

the complaint nor the evidence of witnesses indicates as to the

role played by the appellants in the commission of the offence

and which accused has committed what offence. Under such

circumstances, it cannot be said that the prosecution has

shown prima facie material for summoning the accused for the

offence punishable under Section 302 IPC.

Under Section 319 Cr.P.C., a person can be added as an

accused invoking the provisions not only for the same offence

for which the accused is tried but for “any offence”; but that

offence shall be such that in respect of which all the accused

could be tried together. It is to be seen whether the appellants

could be summoned for the offence under Section 498A IPC

and under Sections 3 and Section4 of Dowry Prohibition Act. The

statement of PW1 both in the complaint and in his evidence

before the court is very general stating that he had given

sufficient dowry to Shilpa according to his status and that the

groom side were not satisfied with the dowry and that they

used to demand dowry each and every time. Insofar as the

demand of dowry and the dowry harassment, there are no

particulars given as to the time of demand and what was the

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nature of demand. The averments in the complaint and the

evidence is vague and no specific demand is attributed to any

of the appellants. In such circumstances, there is no

justification for summoning the appellants even under Section

498A IPC and under Sections 3 and Section4 of Dowry Prohibition

Act. It is also pertinent to point out that upon completion of

investigation, the Investigating Officer felt that no offence

under Sections 498A, Section304-B IPC and under Sections 3 and Section4 of

the Dowry Prohibition Act is made out. Charge sheet was filed

for the offence punishable only under Section 302 IPC against

Chanchal @ Babita. As held in the Constitution Bench

judgment in Hardeep Singh, for summoning an accused under

Section 319 Cr.P.C. it requires much stronger evidence than

mere probability of his complicity which is lacking in the

present case. The trial court and the High Court, in our

considered view, has not examined the matter in the light of the

well-settled principles and the impugned order is liable to be

set aside.”

In reply, learned counsel for respondent No.2-complainant

could not dispute that from the initial complaint dated 03.01.2013 till

submission of report under Section 173 Cr.P.C. on 23.12.2013, in the

intervening period of about one and half year, the complainant has not made

any complaint or made any statement during the inquiry nor has recorded

any supplementary statement under Section 161 Cr.P.C. in present FIR,

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naming the petitioner as one of the accused.

After hearing learned counsel for the parties, I find merit in the

present petition, for the following reasons: –

(a) As noticed above, the complainant, in the first complaint given

on 03.01.2013 and during inquiry of the said complaint and

even in the FIR, has not pointed a finger towards the petitioner

as one of the accused. It is also not disputed that even during

the investigation, the complainant has not recorded any

statement under Section 161 Cr.P.C. naming the petitioner as an

accused along with his brother-accused Chander Mohan

Sharma.

(b) It is a matter of fact that in the FIR, the petitioner is not named

and even in the report under Section 173 Cr.P.C., he was

neither kept in column No.4 nor in Column No.2 and the

complainant has not raised any suspicion till submission of

report under Section 173 (2) Cr.P.C.

(c) The complainant, after a period of about one and half year, for

the first time, while appearing as PW2 on 14.07.2014, named

the petitioner as a person, who was found standing at the

Jalandhar Cantt. Railway Station along with his brother-

accused Chander Mohan Sharma and introduced himself as

property dealer and assured the complainant that he can arrange

a good plot for him and that he gave Rs.1.50 lacs to both of

them. Except for this, in the subsequent part of the statement as

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PW2, the complainant stated that he has allegedly given

Rs.9.00 lacs to brother of the petitioner namely Chander

Mohan Sharma.

(d) In view of judgment of the Hon’ble Supreme Court in Sunil

Kumar Gupta’s case (supra), I find that both the Courts have

not applied its judicial mind and totally ignored the original

complaint given to the police, FIR and report under Section

173 Cr.P.C. and have not recorded a satisfaction that much

stronger evidence than mere probability of his complicity, has

come against the petitioner in the statement of complainant,

while appearing as PW2, which itself show improvements after

one and half year.

For the reasons recorded above, present petition is allowed and

the impugned order dated 18.04.2016 (Annexure P-10) as well as the

impugned order dated 11.11.2016 (Annexure P-12) passed by the Courts

below are set aside.

[ ARVIND SINGH SANGWAN ]
01.08.2019 JUDGE
vishnu

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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