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Sukhwinder Kaur And Ors vs State Of Punjab on 2 July, 2018

CRM No.M-9589 of 2017(OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Criminal Misc. No.M-9589 of 2017(OM)
Date of Decision: July 02, 2018.

Sukhwinder Kaur and others
Petitioners

Versus

State of Punjab and others

Respondents

CORAM:- HON’BLE MRS.JUSTICE LISA GILL

Present: Mr. P.S.Ahluwalia, Advocate
for the petitioners.

Mr. S.Sukarchakia, DAG., Punjab.

Mr. Raman Mohinder Sharma, Advocate
for the complainant.

*****

LISA GILL, J.

The petitioners are aggrieved of order dated 04.08.2015 passed by

the Judicial Magistrate Ist Class, Patiala, whereby they have been summoned to

face trial as additional accused in FIR No. 46 dated 22.04.2013, on an application

under Section 319 Cr.P.C. They are also aggrieved of order dated 31.01.2017,

passed by learned Additional Sessions Judge, Patiala, whereby their revision

against order dated 04.08.2015, has been dismissed.

Brief facts necessary for the adjudication of the case are that FIR No.

46 dated 22.04.2013, under Sections 451, 354 323, 34 IPC, was registered on a

statement of the injured-Amandeep Kaur d/o Balbir Singh. Amandeep Kaur

stated that on 22.04.2013, she was seven (07) months pregnant. Her husband-

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Balbir Singh and sister-in-law-Raj Kumari had employed masons for construction

of a boundary wall of their house. The plinth of the wall on the backside was

being dug. The same is adjacent to the fields of Jora Singh. In the meantime, sons

of Zora Singh, Ramandeep (petitioner no.2) and his brother Gurpreet Rai (non

applicant facing trial) along with their mother (petitioner no.1) and Gurnam Kaur

w/o Bhagwan Singh, petitioner no.3, maternal aunt (Mami) of Ramandeep and

Gurpreet came to the spot. It is alleged that petitioner no.2 and his brother-

Gurpreet Singh started abusing her sister-in-law-Raj Kumari. The complainant on

hearing the noise tried to keep them away. Gurpreet Singh allegedly slapped the

complainant and bit her right arm. Petitioners no.1 and 3 beat her by holding her

hair. Petitioner no.3, allegedly dealt fist blows upon her stomach. The

complainant is stated to have become unconscious and fallen down. Allegations

of beating up of labour engaged in the work, the complainant’s mother-in-law and

sister-in-law Raj Kumari were raised as well. The labour present there freed them

from the clutches of the accused. It is stated that the complainant party was

constructing a wall on the back on their side of the courtyard. The reason for the

grudge, it is stated was that the accused party wanted to stop the complainant side

from constructing a wall and wanted to take possession of the complainant’s area.

The complainant’s husband returned home at 6.00.pm. He was apprised of the

incident which took place at 4.45.p.m. The complainant’s husband brought the

complainant and her sister-in-law-Raj Kumari to Rajindera Hospital, Patiala.

Four injuries each were found on the person of the complainant and Raj Kumari.

Medico legal reports are attached as Annexure P-7 with this petition.

At the outset, the police authorities noted that on the basis of the

statements and the medico legal reports received, no offence worth mentioning

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appeared to have been committed, but further action would be taken after inquiry

and obtaining the medical record. This was so recorded on 18.04.2013.

Thereafter, on 22.04.2013, ASI Major Singh reported that on inquiry being

made, it was found that Ramandeep Kaur etc., started the quarrel and Gurpreet

Singh bit on the arm of the complainant and also hit her on the breast with his

hand. FIR was accordingly registered under Sections 451, 354, 323, 506, 34 IPC.

The police, on investigation, found the present petitioners innocent.

Inquiry was conducted by the Deputy Superintendent of Police, Samana. Inquiry

report dated 20.10.2013 is attached as Annexure P-2 with this petition. It is

specifically stated therein that the dispute in question had taken place only with

the co-accused-Gurpreet Singh. Gurpreet Singh is being proceeded against for the

offences punishable under section 323, 451, 506 IPC, but not under Section 354

IPC.

Statement of the complainant was recorded before the learned trial

Court on 19.02.2015 (Annexure P-3). An application under Section 319 Cr.P.C.,

was moved for summoning the present petitioners. The said application was

allowed by the learned trial Court vide impugned order dated 04.08.2015

(Annexure P-4). Revision filed by the petitioners challenging order dated

04.08.2015 was dismissed by the learned Additional Sessions judge, Patiala, vide

impugned order dated 31.01.2017 (Annexure P-6). Aggrieved thereof, the present

petition has been filed challenging both the abovesaid orders.

Learned counsel for the petitioner vehemently argues that both the

impugned orders deserve to be set aside as both the learned Courts below have

not taken into account the entire facts and circumstances of the case. Learned trial

Court has summoned the petitioners merely on the basis of the allegations in the

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FIR reiterated by PW-1-Amandeep Kaur, the complainant in her examination-in-

chief. The allegations against the petitioners were found to be unsubstantiated

and they were accordingly placed in column No.2 of the final report under

Section 173 Cr.P.C.

It is further submitted that Zora Singh husband and father of

petitioner no.1 and petitioner no.2 respectively, and two of his brothers namely

Karnail Singh and Bhagwan Singh had filed a suit for permanent injunction

against the complainant, her husband and sister-in-law for restraining them from

interfering in their peaceful and exclusive possession of the land in question. The

said plaintiffs were afforded ad interim injunction on 17.04.2013 restraining the

complainant, her husband and sister-in-law from interfering in the peaceful

possession of the suit property. Copy of the interim order is attached as Annexure

P-8. The said suit for permanent injunction was ultimately allowed in favour of

the husband/father of petitioners no.1 and 2 on 28.11.2016 (Annexure P-9). The

present FIR was registered on 22.04.2013 in respect to the incident which

allegedly took place on 17.04.2013 at 4.45.p.m. Moreover, the injuries on the

person of the complainant as well as her sister-in-law do not justify the

summoning of the present petitioners to face trial in the aforementioned FIR as

additional accused. Allegations attracting the rigours of offence punishable under

Section 354 IPC were not found to be correct even qua co-accused-Gurpreet

singh, who is facing trial.

Learned counsel for the petitioners places reliance upon the decision

of the Hon’ble Supreme Court in Hardeep Singh v. State of Punjab (2014) 3

SCC 92 and Brijendra Singh others v. State of Rajasthan 2017 SCC

Online SC 491 to contend that summoning of the present petitioners is clearly

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unjustified in the facts and circumstance of the case. It is thus prayed that this

petition be allowed.

Per contra, learned counsel for the State as well as the complainant

have opposed this petition while submitting that the impugned orders are well

reasoned, logical and in consonance with the material on record. Learned counsel

for the complainant submits that no reliance can be placed on the report of the

Deputy Superintendent of Police (Annexure P-2), wherein it is stated that inquiry

was made from the ‘general public’ of the village. The same cannot be the basis of

finding the petitioners innocent. The petitioners are clearly mentioned at the very

outset in the FIR as well as in the statement of the complainant before the learned

trial Court. The role played by them is clearly detailed. It is thus prayed that this

petition be dismissed and the impugned orders be upheld.

Heard learned counsel for the parties and have gone through the file

with their able assistance.

There is no dispute that the incident in question is alleged to have

taken place at about 4.45 p.m. on 17.04.2013, in respect to the construction of

wall on land in dispute. Zora Singh, husband and father of petitioners no.1 and 2

alongwith two of his brothers admittedly filed a suit for permanent injunction. It

is not denied that interim order in their favour was passed on 17.04.2013 itself.

The complainant party was restrained from interfering in the peaceful possession

of the complainant. The said suit was ultimately decreed in favour of the

plaintiffs as they were found to be in possession of the property in question. As

per the medico legal report dated 17.04.2013, reddish abrasion was found on the

right forearm of the complainant with another contusion near the right wrist. It is

further mentioned that the patient was complaining of pain all over the abdomen,

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chest and back. Sister-in-law of the complainant-Raj Kumari, was detected with a

reddish brown contusion on the right upper arm. Complaint of pain all over

abdomen, head and back is noted. It is not disputed that opinion of a gynecologist

in respect to the complainant despite specific advise by the doctor conducting the

medico legal examination is not available on record.

FIR in this case was registered on 22.04.2013 with the addition of

Section 354 IPC as well. As per inquiry report dated 30.03.2013, co-accused-

Gurpreet Singh was found to be the only person involved in the matter. No

offence punishable under Section 354 IPC was however found to be made out

against Gurpreet Singh, who was proceeded against for the offences punishable

under Sections 323, 451 and 506 IPC. PW-1-Amandeep Kaur, in her statement

before the learned trial Court has not raised any such allegation attracting the

rigours of Section 354 IPC qua Gurpreet Singh. It emerged during the inquiry

conducted by the Deputy Superintendent of Police, Samana, that the complainant

party was asked to refrain from taking possession of the land in question on the

basis of the interim order dated 17.04.2013 granted by the Civil Court in favour

of Zora Singh and others. A petty dispute it is mentioned took place in which the

petitioners were not found present.

There is nothing on record, at this stage, to indicate that the inquiry

conducted by the Deputy Superintendent of Police, Samana, is tainted or

suffering from some grave infirmity which necessitates the said report to be

discarded. In view of the entire facts and circumstances of the case argument

addressed by learned counsel for the complainant that the report of the Deputy

Superintendent of Police, Samana, is merely based on the inquiries made from

‘general public’ is devoid of any merit.

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The learned trial Court proceeded to summon the petitioners while

observing that all the petitioners were named in the FIR initially registered

against them and the allegations have been reiterated by the complainant while

testifying before the learned trial Court. Learned Revisional Court while brushing

aside the argument that the petitioners had been summoned vide a non-speaking

order observed that even if the learned trial Court has not expressed its opinion in

so many words, it does not mean that the same is a non-speaking order reflecting

non application of mind. Without dealing with the contentions raised by the

petitioners, their revision petition was dismissed in a perfunctory manner by the

learned Revisional Court on 31.01.2017.

The factual matrix of the case reveals that there is indeed no such

justifiable material on record, at this stage, which would justify summoning of

the petitioners as additional accused in the aforesaid proceedings.

The Hon’ble Supreme Court in Hardeep Singh’s case (Supra) held

as under:-

“95. At the time of taking cognizance, the court has to see whether
a prima facie case is made out to proceed against the accused. Under
Section 319 Cr.P.C., though the test of prima facie case is the same,
the degree of satisfaction that is required is much stricter. A two-
Judge Bench of this Court in Vikas v. State of Rajasthan (2014) 3
SCC 321, held that on the objective satisfaction of the court a person
may be “arrested” or “summoned”, as the circumstances of the case
may require, if it appears from the evidence that any such person not
being the accused has committed an offence for which such person
could be tried together with the already arraigned accused persons.

xx xx xx

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

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exercised because the Magistrate or the Sessions Judge 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 Cr.P.C. In Section 319 Cr.P.C.
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 Cr.P.C. to form any opinion as to the guilt of the
accused.”

The aforesaid view was reiterated by Hon’ble the Supreme Court in

Brijendra Singh’s case (Supra).

In the present case, there is no such strong and cogent evidence at

this stage which would compel the Court to conclude the existence of something

more than a prima facie case but short of satisfaction to an extent that the

evidence if it goes unrebutted would lead to conviction.

In this view of the matter, impugned order dated 04.08.2015

summoning the petitioners to face trial as additional accused as well as order

dated 31.01.2017 is set aside. This petition is accordingly allowed.

It is clarified that none of the observations in this order are an

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expression of opinion on the merits of the case qua the accused facing trial and

shall have no bearing on the trial qua him/them. Neither would it be a bar to

summon the petitioners in case any fresh, relevant evidence comes on record.

[LISA GILL]
July 02, 2018 Judge
s.khan

Whether speaking/reasoned : Yes/No.

Whether reportable : Yes/No.

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