High Court of Punjab and HaryanaCRM-M/38628/2023dismissed

Jaswinder Singh v. State Of Haryana And Another

2024-10-28Mr. Justice Sandeep Moudgil9 pages

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<Statement of Sh. Dilbhag Singhson of Kali Ram caste Jat resident of Village Sinh Police station Cheeka District kaithal and age 26 years Mb. No. 7357645944. Stated, that I am resident of above said address and agriculturist by profession. We are having dispute of agriculture land with Dharam Singh etc. today dated 25.06.2017 , we reach over the compromise in the police station. Dated 27.06.2017 at about 7.00 P.M. we were working in our field after putting the motor in the tube well. In mean time my uncle Dharam Singh son of Sarda Ram, Gurpal Singh son of Dharam Singh, Jaspal Singh son of Dharam Singh, Amarjit Singh son of Sarda Ram, Jaswinder Singh son of Sarda Ram, Gurjant Singh son

of Jaswinder Singh came on the spot. Amarjit Singh came with Tractor and other came on foot. Dhram Singh was armed with Lathi, Gurpal Singh was armed with Lathi, Jaspal was armed with Gandasi, Jaswinder Singh was armed with Lathi, Gurjant was armed with Gandasi. Amarjit Singh gave a Lalkara. catch them, we will teach a lesson for entering in the field, after this Dharam Singh give a Lathi blow on my right arm and Jaspal Singh attacked upon me with Gandasi and I raised my right hand to save me and Gandasi blow rest on my hand. In mean time Amarjit Singh and Gurpal Singh gave a Lathi blow, which hit on my right arm and I fell down and all of them started beating me with lathies. I shouted," Mar Diya" "Mar Diya", then my father kali Ram came from the house to rescue me and they also start beating my father with Lathis and Gandasi.

Jaswinder Singh gave Lathi blow on the right hand of my father and thereafter, all assailants gave the Lathi and Gandasi blow to me and my father. We received many injuries. All assailants ran away from the spot with their respective weapons and threaten us to kill, if again we entered in said land. We reach at our home and we reach in hospital for treatment and I was referred to G.H kaithal. We are getting the treatment. These assailants have given the injuries to us without any reason. Legal action is to be taken against them,. I got recorded my statement, heard and found correct."

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<57. Thus, the application of the provisions of + CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under + CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to herein above, adding a person as an accused, whose name has been mentioned in Column 2 of the chargesheet or any other person who might be an accomplice."

XXXXXX XXXXX XXXXX XXXXX <105. Power under + CrPC 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 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 crossexamination, 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 + CrPC. In + 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 + CrPC to form any opinion as to the guilt of the accused."

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<15. At the outset, having noted the provision, it is amply clear that the power bestowed on the Court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court, if it appears to the Court that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge sheet or in the process of trial till such time could still be summoned and tried

together with the accused for the offence which appears to have been committed by such persons summoned as additional accused."

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(i) if the competent court finds evidence or if application under Cr.P.C. is filed, regarding involvement of any other person in committing the offence based on evidence "recorded at any stage in the trial" before passing of the order on acquittal or sentence, it shall pause the trial at that stage and the Court shall proceed to decide the fate of the application under + Cr.P.C.;

(ii) if the Court decides to summon an accused under Section 319 Cr.P.C., such summoning order shall be passed before proceeding further with the trial in the main case and depending upon the stage at which the order is passed, the Trial Court shall apply its mind to the fact as to whether such summoned accused is to be tried along with other accused or separately; and (iii) if the power under + Cr.P.C. is not invoked or exercised in the main trial till its conclusion and if there is a split up case, such power can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the spiltup (bifurcated trial). 0%@ dicta

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8, 4 00% 0 : <17. It is, thus, manifested from a conjoint reading of the cited decisions that power of summoning under + Cr.P.C. is not to be exercised routinely and the existence of more than a

prima facie case is sine qua non to summon an additional accused. We may hasten to add that with a view to prevent the frequent misuse of power to summon additional accused under + Cr.P.C., and in conformity with the binding judicial dictums referred to above, the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material is, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under + Cr.P.C. ought not to be invoked."

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Sham Whether speaking/reasoned : Yes/No Whether reportable : Yes/No