TaxTMI 
TaxTMI 
TaxTMI 
2008 (11) TMI 717
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....The bid of the appellant was accepted and lease was granted in his favour. The appellant was thus in possession of the land. 5. According to the prosecution, on June 24, 2004, the appellant was ploughing the land. The accused persons went there with deadly weapons and caused injuries to the appellant as well as other prosecution witnesses. First Information Report (FIR) was lodged against the accused at Police Station Sadar, Samana for commission of offences punishable under Sections 307, 326, 336 and 427 read with Sections 120B, 148 and 149 of the Indian Penal Code, 1860 (IPC) as also for offences punishable under Sections 25, 27, 54 and 59 of the Arms Act, 1959. Accused were arrested. Vijay Preet Singh (respondent No. 2) was one of them. 6. It is the allegation of the appellant that Vijay Preet Singh-respondent No.2 herein is the son of Sukhvinder Singh, Chairman of Panchayat Samiti, Samana. The said Sukhvinder Singh interfered with the investigation. With a view to get the name of his son Vijay Preet Singh deleted by exercising influence on Police Authorities, he made an application on June 26, 2004, i.e. within two days of the incident, lodging of FIR and arrest of Vijay Pree....
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....the Addl. Public Prosecutor under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code') to include respondent Nos. 2 and 3 as accused and to summon them for trial. 10. The Court of the Addl. Sessions Judge, Patiala, however, by an order dated January 12, 2006 rejected the application observing that he did not find sufficient grounds to proceed against Vijay Preet Singh and Jagtar Singh. 11. Being aggrieved by the said order, the appellant herein approached the High Court of Punjab & Haryana by filing Criminal Revision No. 773 of 2007. The High Court, however, dismissed the Revision and confirmed the order passed by the trial Court. The said order is challenged in the present appeal. 12. In the appeal arising out of Special Leave Petition (Crl.) No. 2051 of 2007, the case of the appellant was that the accused [complainant party in SLP (Crl.) No. 166 of 2007] had formed unlawful assembly and committed offences punishable under Sections 307, 326, 336, 447, 427 read with Sections 148 and 149, Indian Penal Code (IPC) as also under Sections 25, 27, 54 and 59 of the Arms Act, 1959. Cross FIR was, therefore, filed on the same day i.e. on June 24....
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....application to join Vijay Preet Singh as an accused and to issue summons to him. Similar error was committed by the High Court. 17. Likewise, the Investigating Agency wrongly recommended deletion of name of Jagtar Singh. From the examination of prosecution witnesses, it was clear that Jagtar Singh was also present at the time of incident with weapon and he participated in the crime. An application under Section 319 of the Code, hence, ought to have been allowed. 18. It was submitted that even if name of a particular person is not mentioned in the FIR as an accused, he can, later on, be added as an accused and a summons can be issued by a Court in exercise of power under Section 319 of the Code. It was, therefore, submitted that the order passed by the trial Court and confirmed by the High Court deserves to be set aside and the appeal deserves to be allowed. 19. The learned counsel for respondent Nos. 2 and 3, on the other hand, supported the order passed by the trial Court and confirmed by the High Court. 20. It was stated that an inquiry had been conducted by the Investigating Agency and on the basis of statements recorded during investigation, it was proved that respondent No....
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....erson attending the Court although not under arrest or upon a summons, may be detailed by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then-- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. (emphasis supplied) 27. Sometimes while hearing a case against one or more accused, it appears to a Court from the evidence that some person other than the accused before it is also involved in that very offence. It is only proper that a Court should have power to summon such person by joining him as an accused in the case. 28. The primary object underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same cas....
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.... not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law". (emphasis supplied) 34. In Shashikant Singh v. Tarkeshwar Singh & Anr., (2002) 5 SCC 738, during the pendency of trial of an accused, another person was summoned by the trial Court under Section 319 of the Code. But by the time he could be brought before the Court, the trial against the accused was over. It was held by this Court that the words "could be tried together with the accused" in Section 319(1) were merely directory and if the trial against the other accused is over, such a person who was subsequently added as an accused, could be tried after the conclusion of the trial of the main accused. 35. In Michael Machado & Anr. V. Central Bureau of Investigation & Anr., (2000) 3 SCC 262, considering the basic requirements of Section 319 of the Code, this Court said; "The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which tha....
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....was then committed to the Court of Session. PW1, in his examination involved the said persons and an application under Section 319 of the Code was filed for issuing summons to them. The trial Court rejected the application primarily on the ground that the plea of alibi was investigated by the Deputy Superintendent of Police and was found to be correct. The High Court did not find infirmity in the order. The action was challenged in this Court. 40. Allowing the appeal and setting aside the order of the High Court, Dr. Pasayat, J. said; "If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is unsustainable". (emphasis supplied) 41. In Guriya & Ors. v. State of Bihar & Anr., (2007) 8 SC....
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....319 of the Code could be arrived at only after cross- examination of the witness is over. The Court stated; "The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same". (emphasis supplied) 47. The counsel submitted that admittedly in the instant case, cross-examination of PW2- Hardeep Singh was not over. In the course of cross-examination by some of the accused persons, the learned Additional Public Prosecutor moved the Court under Section 319 of the Code and further cross-examination was deferred. It was, therefore, submitted that no order under Section 319 could be made and the application was liable to be dismissed. 48. The learned counsel for the complainant, however, placed reliance on a two Judge Bench decision in Rakesh & Anr. V. State of Haryana, (2001) 6 SCC 248. An identical issue was raised there. The father of the prosecutrix lodged an FIR alle....
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.... to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime". 51. Thus, once the Sessions Court records a statement of a witness, it becomes a part of evidence. It is true that finally at the time of trial, the accused must be given an opportunity to cross-examine the witness to test truthfulness of such statement. But that stage would come only after the person is added as an accused. The Code in such situation has afforded sufficient protection by enacting sub- section (4). 52. When an examination-in-chief of a witness is over, there being no cross- examination, it would be merely prima facie material. But it would enable....
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....ion under Section 319 of the Code is maintainable even without completion of cross-examination of a witness. If the Court is satisfied on the basis of examination-in-chief of a witness that a person not shown to be an accused appears to have committed an offence, it can exercise the power under Section 319 of the Code. 56. According to Mohd. Shafi, however, no such order can be passed by a Court under Section 319 unless the cross-examination of the witness is complete. 57. Both the cases i.e. Rakesh and Mohd. Shafi were decided by a two Judge Bench. Whereas Rakesh was decided in 2000, Mohd. Shafi was decided in 2007. In Mohd. Shafi, however, the attention of the Court was not invited to Rakesh. 58. We may only observe that it is settled law that at the stage of issuing summons or process, a Court has to see whether there is prima facie case against the person sought to be summoned or against whom process is sought to be issued. At that stage, there is no question of giving an opportunity of hearing to such person. The entire scheme of the Code is that an accused does not come into picture at all till process is issued. As held by this Court in several cases including a leading d....
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....ohd. Shafi and the subsequent decision thus is per incurium. The accused, on the other hand, submitted that being latest in point of time, Mohd. Shafi should be followed by this Court. 62. In our considered opinion, however, in the light of conflicting decisions of co- ordinate Benches, (both of two Hon'ble Judges), it would be appropriate if we refer the matter to a Bench of three Hon'ble Judges. 63. In the case on hand, in an appeal arising out Special Leave Petition (Crl) No. 2051 of 2007 (Manjit Pal Singh v. State of Punjab & Anr.), there was nothing against respondent No.2-Kashmir Singh and the report submitted by the Investigating Officer had been accepted by the trial Court as well as by the High Court and there is no infirmity therein. 64. Likewise, in an appeal arising out of Special Leave Petition (Crl) No. 166 of 2007 (Hardeep Singh v. State of Punjab & Ors.), Jagtar Singh was not charge-sheeted. Both the Courts considered the report of the Investigating Officer and held that the action of non-issuing of process against Jagtar Singh could not be held illegal or unlawful. We are of the view that the order cannot be termed unlawful or unwarranted which requires ....
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....prevent effective detection of the crime. It may also result into unnecessary detention of the accused in custody. 69. Sub-section (2) enacts that as soon as investigation is completed, the officer in charge of the police station shall forward a report to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the State Government, stating (i) the names of the parties; (ii) the nature of the information; (iii) the names of the persons who appear to be acquainted with the circumstances of the case; (iv) whether any offence appears to have been committed and, if so, by whom; (v) whether the accused has been arrested; (vi) whether he has been released on his bond and, if so, whether with or without sureties; (vii) whether he has been forwarded in custody under section 170. He shall also communicate to the informant the action taken by him. 70. The report contemplated by Section 173 should contain the information required by the said provision. The Investigating Officer is not expected to record findings of fact nor to give clean chit by exercising power of a Court or judicial authority. In the instant case, however, the Sup....
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....et Singh ought to have been included in the charge sheet and the application under Section 319 of the Code deserves to be allowed. The learned counsel for the accused, however, referring to Mohd. Shafi, submitted that in the said decision, this Court held that the jurisdiction under Section 319 of the Code can be exercised by the Court only if the Court is satisfied that in all likelihood such person would be convicted. 74. The Court in Mohd. Shafi, stated; "From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence".(emphasis supplied) [see also Kailash v. State of Rajasthan & Anr., JT 2008 (3) SC 279] 75. With respect, the above observations do not appear to be in consonance with statutory provisions or previous decisions of thi....