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Kavi Raj vs State Of Haryana And Anr on 18 July, 2018

CRM-M No.38997 of 2017 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M No.38997 of 2017
Decided on: 18.07.2018

Kavi Raj
….Petitioner

Versus

State of Haryana and another
….Respondents

CORAM: HON’BLE MR JUSTICE ARVIND SINGH SANGWAN

Present : Mr. Chirag Wadhwa, Advocate
for the petitioner.

Mr. Naveen Sheoran, DAG, Haryana.

Mr. J.P. Sharma, Advocate
for respondent No.2.

ARVIND SINGH SANGWAN, J. (Oral)

Prayer in this petition is for setting-aside the order dated

01.08.2017 (Annexure P5) passed by the Revisional Court vide which,

the order dated 02.05.2017 (Annexure P4) passed by the trial Court

allowing the application under Section 319 of the Code of Criminal

Procedure (in short ‘Cr.P.C.’), summoning respondent No.2 as an

additional accused, was set-aside.

Brief facts of the case are that on 21.01.2014, the

petitioner/complainant was present at his house and was getting the

construction work done when Rajbir Ex. MC, his two sons namely

Jasbir and Pankaj along with Narinder Master (respondent No.2) and

one Bhag Singh @ Rakesh M.C., came in two vehicles along with 7-9

persons. All of them were armed with weapons. 02 of them were

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CRM-M No.38997 of 2017 2

carrying revolvers and rest were carrying baseball bat, gandasi and

swords. The accused persons started abusing the petitioner and gave

beatings to him. On the basis of the complaint given by the petitioner,

the FIR No.59 dated 21.01.2014 was registered under Sections 148,

149, 323, 324, 506 of the Indian Penal Code (in short ‘IPC’), 25/54/59

of the Arms Act and 3(v) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act (in short ‘the SC ST Act’) at

Police Station Karnal Sadar, District Karnal.

During the investigation, the Investigating Officer found

Rajbir Ex. MC, Pankaj, Narinder Master (respondent No.2) and Bhag

Singh as innocent and also deleted Section 3(v) of the SC ST Act and

submitted the challan before the trial Court.

Thereafter, charges were framed against 03 persons namely

Jasbir, Naveen Kumar and Amarjeet @ Kala under Sections 323, 324,

326, 34 and 506 IPC.

The prosecution led its evidence and the petitioner was

examined as PW6. As per the statement of the petitioner, in

examination-in-chief dated 06.03.2017 (Annexure P2), the petitioner

reiterated the version given by him in his statement recorded under

Section 161 Cr.P.C. and stated that respondent No.2 – Narinder Master

was also present at the spot, however, no overt act was attributed to

him. In the examination-in-chief, even no motive was attributed

towards respondent No.2.

Thereafter, the petitioner’s counsel moved an application

under Section 319 Cr.P.C. for summoning the remaining co-accused i.e.

Rajbir, Pankaj, Bhag Singh @ Rakesh and respondent No.2 – Narinder

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Master as additional accused, in the present case.

In the application (Annexure P3), the petitioner has stated

that all the accused persons, have caused injuries to the petitioner and

the Investigating Officer has wrongly declared them innocent and

deleted their names. However, in this application, again no overt act

was attributed towards respondent No.2 – Narinder Master.

The trial Court vide its order dated 02.05.2017 (Annexure

P4) allowed the application and accused persons namely Rajbir Ex.

MC, Pankaj, Bhag Singh @ Rakesh as well as respondent No.2 –

Narinder Master, were summoned as an additional accused.

Thereafter, respondent No.2 preferred a revision before the

Additional Sessions Judge, which was allowed vide impugned order

dated 01.08.2017 (Annexure P5). The present petition has been filed

challenging the said order.

Counsel for the petitioner has submitted that the trial Court

has passed a well-reasoned order, summoning respondent No.2 and,

therefore, there was no occasion for the Revisional Court to exercise its

jurisdiction for setting-aside the summoning order passed by the trial

Court qua respondent No.2. It is further submitted that the other 03

accused persons have not filed any revision petition and they are facing

the trial and only respondent No.2 has preferred the revision petition

whichw as allowed by the Revisional Court.

Counsel for the petitioner has further submitted that the

statement of the complainant is duly supported by the MLR of the

complainant and thus, there is a corroboration in the version of the

complainant and, therefore, the Revisional Court was not justified in

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CRM-M No.38997 of 2017 4

setting-aside the summoning order passed by the trial Court. It is also

submitted that the observation given by the Revisional Court that

respondent No.2, on the date and time of the incident was shown to be

present in the school premises where he is working as a Guest Teacher

and, therefore, his presence at the spot is not proved, is a matter of

evidence and the Revisional Court has wrongly believed this version.

Counsel for the petitioner has relied upon the judgment

“Rakhi Mishra vs State of Bihar and others”, 2017(4) RCR (Criminal)

52, to submit that at the stage of summoning of a person as an

additional accused, the Magistrate is not required to consider the

defence version or material arguments.

In reply, counsel for the State as well as counsel for

respondent No.2 has submitted that the statement of the

petitioner/complainant as PW6, is nothing but reiteration of the version

given by him before the Police under section 161 Cr.P.C. and further

submitted that no fresh/cogent evidence has come on record on the

basis of which, the trial Court has summoned the petitioner.

Counsel for respondent No.2 has relied upon the judgment

“Hardeep Singh vs State of Punjab and others” and other connected

cases, 2014(1) RCR (Criminal) 623, wherein the Hon’ble Supreme

Court has held that while allowing the application under Section 319

Cr.P.C., the Court must record a finding that the evidence which has

come on record is not mere re-recording of the statement made before

the police under Section 161 Cr.P.C., but some cogent and reliable

evidence should come on record. The operative part of the judgment in

Hardeep Singh’case (supra) is reproduced below:-

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“110. We accordingly sum up our conclusions
as follows :

Question Nos. 1 III
Q.1 What is the stage at which power under Section
319 Cr.P.C. can be exercised?

AND
Q.III Whether the word “evidence” used in Section
319(1) Cr.P.C. has been used in a comprehensive
sense and includes the evidence collected during
investigation or the word “evidence” is limited to
the evidence recorded during trial?
A. In Dharam Pal’s case, the Constitution Bench has
already held that after committal, cognizance of an
offence can be taken against a person not named as
an accused but against whom materials are
available from the papers filed by the police after
completion of investigation. Such cognizance can be
taken under Section 193 Cr.P.C. and the Sessions
Judge need not wait till `evidence’ under Section
319 Cr.P.C. becomes available for summoning an
additional accused? Section 319 Cr.P.C.,
significantly, uses two expressions that have to be
taken note of i.e. (1) Inquiry (2) Trial. As a trial
commences after framing of charge, an inquiry can
only be understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202 Cr.P.C.; and
under Section 398 Cr.P.C. are species of the inquiry
contemplated by Section 319 Cr.P.C. Materials
coming before the Court in course of such enquiries
can be used for corroboration of the evidence
recorded in the court after the trial commences, for
the exercise of power under Section 319 Cr.P.C.,
and also to add an accused whose name has been
shown in Column 2 of the charge-sheet. In view of

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the above position the word `evidence’ in Section
319 Cr.P.C. has to be broadly understood and not
literally i.e. as evidence brought during a trial.
Question No. II
Q.II Whether the word “evidence” used in Section
319(1) Cr.P.C. could only mean evidence tested by
cross-examination or the court can exercise the
power under the said provision even on the basis of
the statement made in the examination-in-chief of
the witness concerned?

A. Considering the fact that under Section 319
Cr.P.C. a person against whom material is disclosed
is only summoned to face the trial and in such an
event under Section 319(4) Cr.P.C. the proceeding
against such person is to commence from the stage
of taking of cognizance, the Court need not wait for
the evidence against the accused proposed to be
summoned to be tested by cross-examination.
Question No. IV
Q.IV What is the nature of the satisfaction required
to invoke the power under Section 319 Cr.P.C. to
arraign an accused? Whether the power under
Section 319 (1) Cr.P.C. can be exercised only if the
court is satisfied that the accused summoned will in
all likelihood be convicted?

A. Though under Section 319(4)(b) Cr.P.C. the
accused subsequently impleaded is to be treated as
if he had been an accused when the Court initially
took cognizance of the offence, the degree of
satisfaction that will be required for summoning a
person under Section 319 Cr.P.C. would be the same
as for framing a charge. The difference in the
degree of satisfaction for summoning the original
accused and a subsequent accused is on account of

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the fact that the trial may have already commenced
against the original accused and it is in the course
of such trial that materials are disclosed against the
newly summoned accused. Fresh summoning of an
accused will result in delay of the trial – therefore
the degree of satisfaction for summoning the
accused (original and subsequent) has to be
different.

Question No. V
Q.V Does the power under Section 319 Cr.P.C.
extend to persons not named in the FIR or named in
the FIR but not charge-sheeted or who have been
discharged?

A. A person not named in the FIR or a person
though named in the FIR but has not been charge-
sheeted or a person who has been discharged can
be summoned under Section 319 Cr.P.C. provided
from the evidence it appears that such person can
be tried along with the accused already facing trial.
However, in so far as an accused who has been
discharged is concerned the requirement of Sections
300 and 398 Cr.P.C. has to be complied with before
he can be summoned afresh.

The matters be placed before the appropriate Bench
for final disposal in accordance with law explained
hereinabove.”

Counsel for respondent No.2 has further submitted that the

trial Court while summoning all the 04 accused persons has not

properly appreciated and scrutinized the allegation against each of them

individually. It is further submitted that a perusal of the FIR as well as

the statement of PW6, which are in verbatim the same, show that the

petitioner has alleged that on 21.01.2014, respondent No.2 along with

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others came at the spot and thereafter, Jasbir gave a gandasi blow on his

forehead, when he tried to save himself the same struck on his forehead.

Thereafter, Pankaj hit his sword on his head and when he tried to save

himself, it hit on his left hand. Rajbir, thereafter, took the gandasi and

gave a blow on his forehead and when he tried to save himself, it hit on

his right hand and thereafter, Bhag Singh raised lalkara to teach a

lesson to the complainant in the name of his caste and exerted that he

should not be left and, thereafter, all the accused persons gave him stick

blows and punches. Suresh and Raj Kumar, who had seen the incident

started shouting for help and thereafter, people gathered there and saved

him.

Counsel for respondent No.2 has, thus, submitted that in

the FIR/statement as PW6, though the petitioner has specifically named

04 persons, who have caused injuries to him, however, no overt act was

attributed to respondent No.2. It is further submitted that the

complainant has also not attributed any motive towards the petitioner

and, therefore, the Revisional Court has rightly held that the there was

no other material on record to show that the trial Court was justified in

summoning the petitioner.

Counsel for respondent No.2 has also submitted that in the

enquiry, the Deputy Superintendent of Police has exonerated

respondent No.2 and it was also found that there is a matrimonial

litigation between the petitioner and his wife and the complainant is

pressurizing the accused persons to get a decree of divorce and thus, the

Deputy Superintendent of Police after conducting a proper enquiry has

exonerated respondent No.2.

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After hearing counsel for the parties, I find no merit in the

present petition for the following reasons:-

(a) Though a perusal of the FIR and the
statement of PW6 show the presence of respondent No.2,
however, no injury is attributed to him and even no motive
is attributed towards respondent No.2 for causing any
such injury, therefore, the statement of the petitioner as
PW6 being the reiteration of the version given in the FIR
in view of the judgment of the Hon’ble Supreme Court in
Hardeep Singh’s case (supra), no fresh evidence has come
on record to summon respondent No.2.

(b) It has come in the enquiry report of the
Deputy Superintendent of Police that respondent No.2 was
not present at the spot and as he was present in the school,
which was situated as a distance of 20-25 Kms. away from
the place of occurrence, as a Guest Teacher where he is
serving and there is a matrimonial litigation between the
parties and the petitioner has filed a divorce petition
against his wife and the motive is for pressurizing the
accused persons to seek a decree of divorce.

(c) In view of the judgment of the Hon’ble
Supreme Court “Brijendra Singh vs State of Rajasthan
and others”, 2017(3) RCR (Criminal) 374, wherein the
Hon’ble Supreme Court while deciding the issue regarding
summoning of an additional accused under Section 319
Cr.P.C. has held that the report of the Investigating Officer
finding that an accused person was not present at the spot
can be considered while deciding the application under
Section 319 Cr.P.C., the Revisional Court has rightly held
that respondent No.2 was present in government school at
a far distance.

(d) From a perusal of the FIR and the statement,
it is apparent that neither any specific injury nor any role
is attributed towards respondent No.2 and, therefore, the

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ingredients of invoking Section 319 Cr.P.C., are not
fulfilled.

(e) A perusal of the trial Court order also show
that the allegation against all the 04 persons, who were
summoned including the petitioner were not scrutinized
separately and all the 04 accused persons were summoned
on the premise that there is a strong and cogent evidence
against all of them for summoning as an additional
accused, therefore, the Revisional Court has rightly held
that there is no cogent evidence against respondent No.2
for summoning him, under Section 319 Cr.P.C.

For the reasons stated hereinbefore, finding no merit, the

petition fails and is accordingly dismissed.

(ARVIND SINGH SANGWAN)
JUDGE
18.07.2018
yakub

Whether speaking/reasoned Yes/No

Whether reportable: Yes/No

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