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2002 DIGILAW 572 (PNJ)

Chhoto v. State Of Punjab

2002-05-21

HARJIT SINGH BEDI

body2002
Judgment H.S.Bedi, J. 1. This is an unfortunate case where the trial of nine accused in the murder case has been stayed on account of the orders made by this Court on 12.10.1994, challenging a patently wrong order of the Criminal Court. The facts of the matter are as under : 2. The petitioner, Chhoto daughter of Bachittar Singh lodged FIR No. 82 dated 4.12.1989 in Police Station, Raman against nine persons under Sections 364/436/379/148 read with Section 149 of the Indian Penal Code and Sections 25/27 of the Arms Act. On the completion of the investigation, the police filed a challan under Section 173 of the Code of Criminal Procedure with respect to the afore mentioned offences and including in addition a charge of murder as well, against five persons, after having found four of them, i.e., Rajinder Singh, Sandhura Singh, Mandir Singh and Gurdip Singh innocent. They were shown in Column No. 2 of the challan. The matter was accordingly committed to the Sessions Court for trial with respect to the five accused whereas the accused named in column No. 2 were discharged by the Magistrate. Before the commencement of the trial, the Public Prosecutor filed an application before the Sessions Judge for summoning the four accused who had been discharged. This application was rejected by the trial Court on the ground that as no evidence had yet been recorded, it was not possible to form an opinion on the merits of the application. The charge was thereafter framed and the trial commenced. During her evidence in Court, Chhoto, narrated the facts given in the FIR and categorically stated that Rajinder Singh, Sandhura Singh, Mandir Singh and Gurdip Singh, who had been discharged had also been involved in the incident. An application was thereafter moved by the Public Prosecutor under Section 319 of the Code of Criminal Procedure for summoning these four persons. This application was rejected by the Addl. Sessions Judge, Bathinda vide his order dated 19.9.1994, primarily on the ground that Section 319 of the Code of Criminal Procedure was not applicable to the case as the four persons, who had been discharged were accused at the time of the filing of the challan and that on merit also there was no evidence to show their involvement. 3. It is against this order that the present petition has been filed. 4. 3. It is against this order that the present petition has been filed. 4. The respondents have been served and are represented by Shri R.S. Cheema, their counsel. 5. It has been argued by Mr. J.S. Mann, the learned counsel appearing for the petitioner that the interpretation put on Section 319 of the Code of Criminal Procedure was erroneous as the four private respondents were not accused at the time when the application under Section 319 of the Code of Criminal Procedure had been made as they had admittedly been discharged at the commitment stage. The argument of the learned counsel has merit. Section 319 of the Code of Criminal Procedure is reproduced as under : "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 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 the witness 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." It will be seen that the words "not being the accused" that find mention in Section 319 of the Code, could pertain to only such accused who are before the Court at the stage of the Sessions trial. Admittedly after their discharge at the committal stage the four private respondents ceased to be accused and could not be deem to be accused at the time of the Sessions trial. Admittedly after their discharge at the committal stage the four private respondents ceased to be accused and could not be deem to be accused at the time of the Sessions trial. This is also the interpretation put on Section 319 of the Code is supported by the Honble Supreme Court in Smt. Rukhsana Khatoon v. Sakhawat Hussain & others, JT 2001(10) SC 548. It is clear from the evidence given by Chhoto before the Sessions Court that she had specifically named the four accused as being amongst those, who had committed the crime. To my mind, this statement was itself sufficient to summon the four respondents as accused. In this view of the matter, a finding to the contrary recorded by the Addl. Sessions Judge is erroneous. This petition is accordingly allowed, the order of the trial Judge dated 19.9.1994 is set aside and it is directed that the four respondents Rajinder Singh, Mandir Singh, Gurdip Singh and Sandhura Singh, who have been shown in column No. 2 shall stand trial along with their co-accused. As the FIR had been lodged in the year 1989 and the trial has been stayed since 1994 on the orders made by this Court, it is directed that the Sessions Judge shall dispose of the matter, if possible on a day to day hearing basis. The parties are directed to appear before the Sessions Court on 29.7.2002. Dasti order.