High Court of Punjab and HaryanaCRM-M/11021/2023disposed of

Simarjit Kaur And ANR v. State Of Punjab

2023-12-01Mr. Justice Kuldeep Tiwari15 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH *** CRM-M-11021-2023 Date of Decision: 01.12.2023 SIMARJIT KAUR AND ANR.

-Petitioners

Versus

STATE OF PUNJAB AND ANR.

-Respondents

CORAM:

HON'BLE MR. JUSTICE KULDEEP TIWARI Argued by: Mr. Balbir Kumar Saini, Advocate for the petitioners.

Mr. P.S. Grewal, D.A.G., Punjab.

Mr. Munish Gulati, Advocate for the respondent No.2/complainant.

*** KULDEEP TIWARI, J.

Through the instant petition, the petitioners have assailed the impugned summoning order dated 14.10.2022, wherethrough, the learned Magistrate concerned has, after allowing the application under Section 319 of the Cr.P.C., as preferred by the respondent No.2/complainant, summoned the petitioners as additional accused to face trial along with other accused, in FIR No.27 dated 28.04.2021, under Sections 323/324/34 of the IPC, registered at P.S. Ajitwal, District Moga. In addition, the petitioners have also challenged the verdict dated 03.02.2023, whereby, the learned revisional court concerned has dismissed the statutory revision petition, as preferred before it by the petitioners, against the impugned summoning order dated 14.10.2022.

The learned counsel for the petitioners has challenged the

orders (supra), primarily on the ground that, the impugned summoning proceedings are tainted with a fundamental legal defect, as despite there being absolutely no case made out against the petitioners, based upon the evidence, as adduced before the learned trial Court concerned, yet they have erroneously been summoned to face trial. In fact, the application, as moved under Section 319 of the Cr.P.C, was nothing but a sheer abuse of the process of law.

FACTUAL MATRIX 3.

The genesis of the prosecution case is embodied in the statement made by respondent No.2/complainant- Makhan Singh, alleging therein that, one Tehal Singh along with his son and daughters (present petitioners) made assault upon him. The relevant extract of his statement, as encapsulated in the Final Report (Annexure P-4), is extracted hereinafter:-

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The hereinabove extracted statement led to registration of the present FIR against co-accused Tehal Singh and Dheera Singh. 5.

It would be worth to record here that, though allegations against the present petitioners were also levelled by the respondent No.2/ complainant in his statement (supra), however, as is apparent from the "police proceedings" portion of the FIR (supra), the present petitioners were found innocent, rather a finding has been recorded therein that they have deliberately been entangled in the instant case. 6.

Aggrieved by non arraying of the present petitioners as accused in the present FIR, the respondent No.2/complainant moved an application before the Senior Superintendent of Police, Moga, thereby seeking nomination of present petitioners as accused in the present FIR. Though this application was duly inquired into, however, again a conclusion qua innocence of the present petitioners was recorded by the S.H.O. concerned in his report (Annexure P-3). The relevant extract of report (Annexure P-3) is reproduced hereinafter:- "15. Conclusion: In the initial investigation, Tehal Singh, Dhira Singh have been nominated in the above said case and his both daughters namely Simarjit Kaur and Karamveer Kaur are unmarried. Due to the party faction in the village, their names have been deliberately mentioned in the complaint by the complainant. They are not found involved in the above said case....." 7.

Therefore, after completion of investigation, since no complicity of the petitioners could surface, the Final Report under Section 173 of the Cr.P.C. was presented only against co-accused Tehal Singh and Randhir Singh @ Dhira before the learned trial Court, who have resultantly

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The learned trial Court concerned, through drawing the impugned order dated 14.10.2022, allowed the application (supra) and summoned the petitioners to face trial. The summoning of the petitioners was anchored upon the learned trial Court concerned gauging the ocular testimony of complainant/respondent No.2 to be sufficient for the relevant purpose.

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% SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER 12.

The learned counsel for the petitioners, in his assailing the impugned summoning order(s), has argued that despite the petitioners being declared innocent by the investigating officer, and, despite there being lack of any cogent evidence even remotely indicative of petitioners' complicity, yet the learned courts below have erred in summoning the petitioners, merely on a flimsy ground that, they had played active role in the alleged

occurrence.

13.

The learned counsel for the petitioners has further argued that, apart from the initial police investigation, which led to the petitioners becoming exculpated in the FIR, the innocence of the petitioners also garners strength from the report (Annexure P-3), which was drawn after making investigation in the complaint made by the respondent No.2/ complainant, and wherein, a specific conclusion has been recorded that the petitioners have deliberately been entangled in the alleged occurrence, owing to party faction in the village concerned. 14.

Lastly, the learned counsel for the petitioners has argued that the impugned summoning order has been drawn in gross misinterpretation of the guidelines, as issued by the Hon'ble Supreme Court in the case of

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#$% SUBMISSIONS OF LEARNED STATE COUNSEL, AND, LEARNED COUNSEL FOR THE RESPONDENT NO.2/COMPLAINANT 15.

Per contra, the learned State counsel, who is assisted by the learned counsel for the respondent No.2/complainant, has opposed the arguments made by the learned counsel for the petitioner. By placing heavy reliance upon the statement(s) of the complainant/respondent No.2, wherein names of the petitioners have been disclosed as assailants, he has justified the summoning of the petitioners, inasmuch as, the roles of the petitioners become unveiled in the said statement(s). Therefore, a prayer is made that the instant petition be dismissed, being devoid of merits. ANALYSIS 16.

17.

The scope of Section 319 of the Cr.P.C. has been considered and enunciated by the Hon'ble Supreme Court and by this Court also, in a catena of judgments, whereupon, it has been held that, during the pendency of inquiry or trial, the trial Court has jurisdiction to proceed against a person for the offence, which he appears to have committed, if, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that such person, not being the accused, has committed any offence, for which he could be tried together with the accused, under Section 319(1) of the Cr.P.C.

18.

The Hon'ble Supreme Court in "Sohan Lal vs State of Rajasthan", AIR 1990 SC 2158, while explaining the scope of Section 319 of the Cr.P.C., has held that, this Section empowers the trial Court to proceed against a person, not being the accused, "appearing to be guilty" of an offence. The relevant extract of Sohan Lal's judgment is extracted hereinafter:- "This section empowers the Court to proceed against persons not being the accused appearing to be guilty of offence. Sub-sections (1) and (2) of this section provide for a situation when a Court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the

same manner in which cognizance was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the section is wide enough to include cases instituted on private complaint."

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REASONS FOR ALLOWING THE INSTANT PETITION

21.

The prime reason for allowing the instant petition is grooved in the factum that both the learned courts below have failed to appreciate that the entire record is lacking any cogent evidence suggestive of petitioners' culpability.

22.

In the instant case, there is no wrangle that the respondent No.2/complainant had, at the very first instance, i.e. in the FIR, alleged the petitioners to have abused him, and, to have caught hold his beard. However, subsequently when the petitioners were not arrayed as accused in the FIR, owing to them being found innocent, the respondent No.2/complainant moved an application before the Senior Superintendent of Police, Moga, thereby seeking nomination of present petitioners as accused in the FIR, on the improved allegations that, apart from catching hold his beard and abusing him, the petitioners had also inflicted injuries to him with their respective weapons. Strangely enough, the trail of improvements, on the part of the respondent No.

2/complainant did not pause here, as, at the time of making testification as PW-1 before the learned trial Court concerned, he chose to adopt and reiterate his initial version as spelt in the FIR, i.e. though he alleged the petitioners to have abused him, and, to have pulled his beard, however, he omitted the allegations qua infliction of injuries to him by the petitioners with their respective weapons. The relevant extract of all the three versions (supra), as narrated by the respondent No.2/complainant, is reproduced hereinafter:- "VERSION IN FIR ....

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VERSION IN COMPLAINT ....both daughters of Tehal Singh namely Simarjit Kaur and

Karamveer Kaur, inflicted injuries to me with their respective weapons in connivance with each other. The above mentioned daughters of the accused caught hold my beard and abused me.....

VERSION AS PW-1 ....at that time two daughters of Tehal Singh also came there and caught hold of me, pulled my beard......" " (

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, neither the learned courts below framed any opinion, nor made any conclusion as to whether there is any material to support the

the sole and weak piece of evidence before it, at the stage of passing the impugned summoning order.

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! "#$ % % FINAL ORDER 26.

For all the reasons (supra), this Court finds merit in the instant petition and is constrained to allow the same. Consequently, the instant

petition is allowed, and, the impugned summoning order dated 14.10.2022, and, the verdict dated 03.02.2023, are set aside. 27.

Needless to say that, the complainant/prosecution agency shall be at liberty to, at a subsequent stage, invoke the provisions of Section 319 of the Cr.P.C., in case there emerges cogent and convincing evidence warranting summoning of the petitioners to face trial. (KULDEEP TIWARI) JUDGE 01.12.2023 devinder Whether speaking/reasoned: Yes/No Whether reportable: Yes/No