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2002 DIGILAW 1182 (PNJ)

Gian Parkash v. State Of Punjab

2002-11-12

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. This is a petition under Section 401 Cr.P.C. against the order dated 11.3.2002 passed by the learned Judge, Special Court, Mansa vide which the petitioner has been summoned as an additional accused to face trial in a case registered under Section 25 read with Section 15 N.D.P.S. Act. 2. The case in brief is that four bags containing poppy straw were recovered from truck bearing registration No. RJ-31G-0778 while Sher Singh and Sukhpal Singh were riding in the truck. Registration of the truck was in the name of Sukhwinder Singh son of Sher Singh. Both the accused were facing trial in N.D.P.S. case. Prosecution evidence was led in part. A perusal of the recovery memo Ex.PH shows that initially truck was in the ownership of Gian Parkash son of Suraj Mal, but there was entry on it about the change of ownership in the name of Sukhwinder Singh. The truck was got released on sapurdari by Sukhwinder Singh claiming himself as owner of truck. An application was moved by Jatinder Kumar son of Des Raj resident of Mansa for cancellation of sapurdari of truck. When alleged poppy straw was recovered from the truck, it was in the name of Gian Parkash and Sukhwinder Singh, therefore, trial Court summoned them as an additional accused under Section 319 Cr.P.C. to fact trial alongwith other accused. 3. Aggrieved by that order, present revision has been filed by Gian Parkash, petitioner. 4. Mr. D.R. Mahajan, learned counsel for the petitioner submitted that order dated 11.3.2002 passed by Judge, Special Court, Mansa is palpably erroneous. He contended that the alleged truck has already been sold by the petitioner to Sukhminder Singh and an affidavit to that effect has been placed on record as Annexure P-3 and affidavit of Sukhminder Singh dated 25.5.1998 (Annexure P-4) has also been placed on record to show that the truck has been purchased by him. He pointed out that there is no evidence with the prosecution that prima facie case is made out against the petitioner to connect him with the commission of offence. He contended that under Section 319 Cr.P.C. power can be exercised only in case when evidence indicated reasonable prospect of conviction of accused in the crime. In support of his arguments, he placed reliance on Machael Machando and another v. C.B.I. and another, 2000 Supreme Court Cases (Crl.) 609. 5. He contended that under Section 319 Cr.P.C. power can be exercised only in case when evidence indicated reasonable prospect of conviction of accused in the crime. In support of his arguments, he placed reliance on Machael Machando and another v. C.B.I. and another, 2000 Supreme Court Cases (Crl.) 609. 5. On the other hand, Mr. H.S. Grewal, learned Deputy Advocate General, Punjab failed to rebut the submissions made by learned counsel for the petitioner. 6. Before considering the submissions of learned counsel for the parties, it will be appropriate to notice the provisions of Section 319 Cr.P.C. which reads as under :- "319. Power to proceed against other persons appearing to be guilty of offence :- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into or trial of, the offences which he appears. (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 the 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." 7. A perusal of the above section shows that it empowers the Court to add any person as an accused before it, if during the course of any enquiry or trial, if appears from the evidence led by the prosecution that the person had committed any offence but he is not facing the trial. 8. The powers under this Section are to be used sparingly and are not to be used in routine. 8. The powers under this Section are to be used sparingly and are not to be used in routine. The powers under this Section can only be used if from the evidence led by the prosecution it prima facie shows the complicity of the person but is not an accused and is to be added as an accused to face trial alongwith the accused who is already facing trial. It is crystal clear from Clause (4) of Section 319 Cr.P.C., that the case may be proceed as if such person had been an accused person when the Court took cogniznace of the offence upon which the inquiry or trial was commenced. The complicity of the newly added person prima facie should be established from the evidence collected by the prosecution during the investigation. If during the investigation, the accused has not been named nor the complicity of the accused is established prima facie then the Court should not summon the person as an added accused. If the Court took cognizance against that person whose name has not been mentioned neither in the FIR nor in the statement recorded under Section 161 Cr.P.C. or 164 Cr.P.C. or any other evidence and the complainant named the person for the first time as an accused that will amount to empower the Court to take cognizance of fresh offence for which the Court has not been empowered under Section 319 Cr.P.C. Therefore, this Court and the Apex Court has repeatedly held that the power under Section 319 Cr.P.C. is an extra-ordinary power which is conferred on the Court and should be used sparingly only if the compelling reasons exist for taking cognizance against the accused. 9. Now adverting to the facts of the present case petitioner has sold the aforesaid truck to Sukhminder Singh on 25.5.1998 and received full and final payment of the said vehicle and possession has been delivered to the purchaser. Sukhminder Singh has filed his affidavit dated 25.5.1998 to the effect that he purchased the truck from petitioner and he shall be responsible for all kind of tax, challan, accidents etc. in respect of the said vehicle. When the truck has been sold by the petitioner, then no role can be attributed to him in the commission of any offence. Sukhminder Singh has filed his affidavit dated 25.5.1998 to the effect that he purchased the truck from petitioner and he shall be responsible for all kind of tax, challan, accidents etc. in respect of the said vehicle. When the truck has been sold by the petitioner, then no role can be attributed to him in the commission of any offence. At the relevant time, the truck was being driven by Sher Singh, father of Sukhwinder Singh and Sukhpal Singh, his brother was sitting in it. At that time, the truck was in use and control of Sher Singh and Sukhpal Singh, Sukhminder Singh being the owner of it. Therefore, no role can be attributed to present petitioner in the commission of offence under the N.D.P.S. Act. 10. For the reasons recorded above, this revision is accepted and order dated 11.3.2002 passed by the learned Judge, Special Court, Mansa summoning the petitioner as an additional accused is quashed.