High Court of Punjab and HaryanaCRR/3112/2018allowed

Richpal @ Makkar v. State Of Haryana

2024-01-31Mr. Justice Kuldeep Tiwari18 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH *** CRR-3112-2018

Reserved on: 24.01.2024

Date of Pronouncement: 31.01.2024

RICHPAL @ MAKKAR -Petitioner

Versus

STATE OF HARYANA -Respondent

CORAM:

HON'BLE MR. JUSTICE KULDEEP TIWARI Argued by: Ms. S.K. Verma, Advocate for the petitioner.

Mr. Bhupender Singh, D.A.G., Haryana.

Mr. Jitender Dhanda, Advocate for the complainant.

*** KULDEEP TIWARI, J.

Through the instant petition, the petitioner has assailed the order dated 07.08.2018, as passed by the learned Additional Sessions Judge, Hisar, whereby, after allowing the application under Section 319 of the Cr.P.C., as preferred by the complainant through public prosecutor, the petitioner has been summoned to face trial for the commission of offences under Sections 307, 325, 201, 34 read with Section 120-B of the IPC, and, Section 25 of the Arms Act, in FIR No. 78 dated 19.04.2017, registered at P.S. Bass.

The learned counsel for the petitioner has challenged the order (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 petitioner, based upon the evidence, as adduced before the learned trial Court concerned, yet he has 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 one Mahender son of Sube Singh (hereinafter referred to as the 'complainant), alleging therein that, two boys fired gunshots upon him, with intention to kill him. The relevant extract of his statement, as encapsulated in the Final Report (Annexure P-1), is extracted hereinafter:-

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The hereinabove extracted statement led to registration of the present FIR against unknown motorcyclists. However, during the course of investigation, on 27.05.2017, one Rajbir son of Sube Singh got recorded his statement that Sudhir son of Satbir is also, apart from the unknown motorcyclists, involved in the present incident, inasmuch as, he had informed the assailants about the location of the complainant. Based upon this statement, Sudhir son of Satbir was arrested in the present case on 17.06.2017. Thereafter, accused Joginder, Banarsi and Bijender, who were arrested in another FIR No.538/17, registered at P.S. City Jind, suffered disclosure statement(s), thereby making admission qua their culpability for commission of the present incident, at the instance of one Raju Pannu (stated to be in Australia and declared P.O.

in the present case). Resultantly, the investigating officer concerned was led to, after obtaining production warrants of these accused from the Court concerned on 07.07.2017, interrogate them in the present case, and, upon sufficient inculpatory evidence being surfaced against them, they were also arrested in the present case.

After completion of investigation, the Final Report under Section 173 Cr.P.C. was presented against accused Sudhir, Joginder @ Jogi, Bijender @ Nehla, and, Banarsi @ Kala, before the learned trial Court. 6.

Since the accused (supra) had, in their disclosure statement(s), stated that they had stayed in the "Kotha" of Richpal @ Makkar (present

petitioner) and they were supplied the pistols, as used in the present incident, from the said Kotha, therefore, investigation qua role of the present petitioner was also carried out, however, no inculpatory evidence was found against him and he was declared innocent. 7.

What caused grievance to the complainant, was the petitioner becoming declared innocent by the investigating officer and consequently, he was driven to, through public prosecutor, institute an application under Section 319 of the Cr.P.C., thereby seeking summoning of the present petitioner as an additional accused.

The learned Additional Sessions Judge concerned, through drawing the impugned order dated 07.08.2018, allowed the application (supra) and summoned the petitioner to face trial. Therefore, the petitioner, who is aggrieved from his summoning, is before this Court, through the instant petition.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER 9.

The learned counsel for the petitioner, in his assailing the impugned order dated 07.08.2018, has argued that despite the petitioner being declared innocent by the investigating officer, and, despite the learned Additional Sessions Judge concerned, who through the impugned order, making observation therein, that the name of the petitioner does not surface anywhere either in the statement of the complainant or in the FIR, yet it erred in summoning the petitioner, merely on a flimsy ground that, the petitioner had provided weapons to the main accused. 10.

The learned counsel for the petitioner has further argued that the innocence of the petitioner gains strength from the statements of 16 persons, whose statements were recorded during investigation by the

investigating officer, and wherein, they all have stated in unambiguous terms that the petitioner does not have any concern or connection with this case. Insofar as the allegations qua stay of the main accused in the Kotha, which allegedly belongs to the petitioner, is concerned, the same are also frail allegations, as the statements of aforesaid 16 persons also reveal that the said Kotha always remained open and was used by various persons for taking rest.

11.

The next argument, as raised by the learned counsel for the petitioner, is rested upon the factum that, the name of the petitioner did not even surface in the first two disclosure statements of the main accused, rather it had surfaced in the third disclosure statement, as made by accused Jogender on 09.07.2017. Therefore, the disclosure statement(s) are not confidence inspiring, rather lack creditworthiness. 12.

Lastly, the learned counsel for the petitioner has argued that though calls did take place inter se the petitioner and accused Sudhir on 11.04.2017, however, the inference, as drawn therefrom by the learned Additional Sessions Judge concerned, qua the petitioner being involved in the crime is totally wrong. The reason being that, the petitioner runs a shop in Grain Market Bass, and, on 11.04.2017, the father of accused Sudhir had brought his wheat crop to the shop of the petitioner and that's why calls were made inter se the petitioner and accused Sudhir, and that too, only on 11.04.2017.

SUBMISSIONS OF LEARNED STATE COUNSEL, AND, LEARNED COUNSEL FOR THE COMPLAINANT 13.

Per contra, the learned State counsel, who is assisted by the learned counsel for the complainant, has opposed the arguments made by

the learned counsel for the petitioner. By placing heavy reliance upon the disclosure statement(s) of the main accused, he has justified the summoning of the petitioner, inasmuch as, the role of the petitioner becomes unveiled in the said disclosure statement(s). Therefore, a prayer is made that the instant revision petition be dismissed, being devoid of merits. ANALYSIS 14.

15.

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.

16.

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 19.

In the instant case, there is no wrangle that the complainant had, at the very first instance, not named the petitioner as an accused. In fact, the FIR was registered against unknown persons and it was only after lapse of more than a month that, during investigation, the brother of the complainant had suffered a statement, wherein, he alleged one Raju son of Rajpal to be involved in the incident, as he believed that it was Raju, who had in conspiracy with three other persons, got fired gunshots upon the complainant. He further alleged that the whereabouts/location of the complainant was supplied to Raju by one Sudhir son of Satbir. Therefore, based upon this statement, co-accused Sudhir was arrested on 17.06.2017 and his mobile was also seized. Subsequently, co-accused Joginder, Banarsi and Bijender, who were arrested in another FIR No.

538/17, registered at P.S. City Jind, suffered disclosure statement(s), thereby making admission qua their culpability for commission of the incident, whereupon, they were brought on production warrants and after interrogation, when sufficient inculpatory evidence surfaced against them, they were also arrested in the present case.

20.

Interestingly, the initial two disclosure statements of co-

accused Joginder, Banarsi and Bijender, did not reveal the name of the petitioner, rather his name surfaced in their third disclosure statement, inasmuch as, it was disclosed therein that, prior to commission of the incident, they had stayed in the "Kotha" (a room constructed in fields generally for the purpose of keeping agricultural appliances and tube-well motor, electricity connection) constructed in the fields of the present petitioner, and, the pistols used in the incident were also supplied there to them.

21.

The third accusatory disclosure statement of the co-accused (supra), as suffered against the petitioner, resulted in an investigation being carried out by D.S.P. Kaptan Singh qua the role of the petitioner in the commission of the incident. In this investigation, the D.S.P. concerned joined about 16 persons and upon interrogation, the accusations made against the petitioner in the third disclosure statement proved to be fallacious, inasmuch as, neither any link could be established inter se the petitioner and co-accused, nor any inculpatory role could be assigned to the petitioner in the commission of the incident. The relevant findings of the D.S.P. concerned, as encompassed in Annexure P-4, are extracted hereinafter:-

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However, what formed the backbone for summoning of the petitioner, despite his being declared innocent during investigation, was the sole testification of the complainant as PW1. 23.

However, what emanates from the examination-in-chief of the complainant is that, he deposed therein that, he had subsequently come to know about involvement of the present petitioner and other accused in the incident. The relevant extract of his examination-in-chief is reproduced hereinafter:- "... Then I came to know that Sudhir son of Satbir had given information about my location to Richpal @ Makkar son of Balwant, resident of Village Bass and Raju to kill me. Sudhir was interested in going to Australia, his uncle Raju is living in Australia who conspired the whole conspiracy to kill me. Then I came to know that the boys who fired upon me resided some time in the kotha constructed in the fields of Makkar who also provided food and weapons to these boys. Jogender, Banarsi, Bijender and Sudhir accused are present in the Court. Accused Richpal alias Makkar and accused Raju -. &

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%1 falls within the category of "hearsay evidence", as he just simply deposed what was informed to him, whereas, he apparently did not have any knowledge about involvement of the present petitioner. 2esultantly, the summoning of the petitioner, on such weak piece of ocular testimony, does not pass the test, as laid down in Hardeep Singh's case (supra). -3

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)* "12. Admittedly, the present case was registered on the statement of Mahender Singh wherein he has not named the proposed accused as assailant but as is clear from investigation of the present case, the proposed accused Richpal was found involved in helping accused persons to stay in the Kotha of his fields and in arranging the pistol to the accused persons and in providing information to the accused persons with regard to the complainant. It has also come in the investigation proceedings that the investigation against the accused Raju and Richpal under section 120B IPC is yet to be completed and after completion of investigation against the accused, the separate

supplementary challan against them be filed. The investigation against the accused Raju and Richpal was conducted by DSP Kaptan Singh who found Richpal innocent in the present case. No explanation has been given by DSP Kanta Singh as to how Richpal was found innocence whereas in the initial investigation, Richpal was found involvement in the commission of crime present case. Merely saying Richpal innocence without any reasonable explanation cannot discard the investigation earlier conducted in which Richpal was found involved in the present case.

13. Keeping in view the above discussed facts and circumstances coupled with above-cited legal proposition, this Court is of the considered view there is sufficient prima-facie evidence against the proposed accused to infer that he was also involved in the incident along with the accused who are facing trial." 26.

The issue, whether the learned trial Court concerned was, or, was not well within its jurisdiction to summon the petitioner, on the basis of material collected by the investigating agency, has also been examined in Hardeep Singh's case (supra), and, the relevant extract is reproduced hereinafter:- "78. This would harmonise such material with the word `evidence' as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.

79. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial.

80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial

commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The `evidence' is thus, limited to the evidence recorded during trial."

27.

On the touchstone of the law laid down by the Hon'ble Supreme Court in Hardeep Singh's case (supra), it is explicitly clear that the material produced before the learned trial Court concerned could have been utilized only to corroborate the evidence recorded by the Court to invoke the powers conferred under Section 319 of the Cr.P.C. However, in the instant case, neither the learned trial Court has framed any opinion, nor made any conclusion as to whether there is any material to support the ocular testimony of the complainant, which was the sole and weak piece of evidence before it, at the stage of passing the impugned summoning order. FINAL ORDER 28.

For all the reasons (supra), this Court finds merit in the instant revision petition and is constrained to allow the same. Consequently, the instant revision petition is allowed, and, the impugned summoning order dated 07.08.2018 is hereby set aside.

29.

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 petitioner to face trial. (KULDEEP TIWARI) JUDGE 31.01.2024 devinder Whether speaking/reasoned: Yes/No Whether reportable: Yes/No