Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 767 (PNJ)

Baljinder Singh v. State Of Punjab

2002-08-07

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. This is a revision under Section 401 Cr.P.C. against the order dated 7.1.2000 passed by Judicial Magistrate Ist Class, Jagraon vide which petitioner has been summoned to face trial in an offence under Section 406/408/409/420 IPC. 2. The case of the prosecution is that petitioner and Surinder Pal were working as Branch Officer and Field Officer and were posted in Rampura Phul Branch of Punjab State Cooperative Supply and Marketing Federation Limited (hereinafter referred to as the MARKFED). The said officers were assigned the duty of procurement and storage of wheat crop for the year 1996-97. During this period MARKFED purchased 2,13,865 bags of wheat weighing 203171.17 qtls of wheat and same was entrusted to them. The wheat was misappropriated by them and a loss of Rs. 75 lacs was caused to MARKFED. A complain was made by the District Manager, MARKFED, Ludhiana against the petitioner and Surinder Pal to the Senior Superintendent of Police for breach of trust and on the basis of that complaint, FIR No. 48 dated 26.6.1998 was registered in Police Station, Raikot. The investigation was conducted by D.S.P. Raikot and petitioner was found innocent. The D.S.P. has presented challen in the Court against Surinder Pal Singh only. On 7.1.2000, during the proceedings before the Judicial Magistrate Ist Class, Jagraon, statement of Mohan Lal, the District Manager, Ludhiana was recorded and after perusing the statement of said Mohan Lal, the Judicial Magistrate summoned the petitioner vide order of even date. Aggrieved by which, the present revision has been filed. 3. Ms. Jagdeep Bains, learned counsel for the petitioner submitted that the learned Magistrate has erroneously summoned the petitioner under Section 319 Cr.P.C. She contended that petitioner was found innocent during investigation and even he was not shown in column No. 2 of the report under Section 173 Cr.P.C. She further contended that petitioner has been summoned on the basis of statement made by Mohan Lal, PW1. The statement of Mohan Lal cannot be read in evidence as it is not a legal evidence. She also contended that evidence mans "admissible evidence". She pointed out that the admissible evidence means when examination-in-chief and cross-examination of a witness is complete. She stated that cross-examination of Mohan Lal was not complete, therefore, the evidence could not be treated as admissible evidence and petitioner cannot be summoned as an additional accused to face the trial. She also contended that evidence mans "admissible evidence". She pointed out that the admissible evidence means when examination-in-chief and cross-examination of a witness is complete. She stated that cross-examination of Mohan Lal was not complete, therefore, the evidence could not be treated as admissible evidence and petitioner cannot be summoned as an additional accused to face the trial. 4. After hearing learned counsel for the petitioner and perusing the record, I am of the considered opinion that there is no illegality or irregularity in the impugned order. 5. Before considering the submissions of the learned counsel for the petitioner, it will be appropriate to notice the provisions of section 319 Cr.P.C. :- "319. Power to proceed against order 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 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." 6. A perusal of sub-section (1) to Section 319 shows that the Court can proceed against any person not shown as an accused but during the course of enquiry into or trial it appears from the evidence that such person has committed an offence for which he could be tried together with the main accused against whom the enquiry and trial is pending before the Court. This power can be exercised only if it appears from the evidence during enquiry or trial and not otherwise. 7. This power can be exercised only if it appears from the evidence during enquiry or trial and not otherwise. 7. The controversy in this petition is whether the petitioner can be summoned under Section 319 Cr.P.C. without cross-examination of the witness ? This proposition has been settled in Rakesh and Anr. v. State of Haryana, JT 2001(5) 639 and it has been held as under :- "Sub-section (1) of the Section 319 itself provides that 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 persons for the offence for which he appears to have committed. Further, in case of inquiry there may not be any question of cross-examining with witness. The decision of this Court in (Joginder Singh v. State of Punjab and another) nowhere lays down that before a person is added as accused in a session trial case, he should be permitted to cross- examine the witnesses whose evidence is (sic). On the contrary, it lays down that once the sessions court is seized of the matter as a result of the committal order against some accused the power under Section 319(1) can come into play and Court can add any person, not an accused before it, as an accused and direct him to be tried alongwith other accused. The Court has further observed that the very purpose of enacting Section 319(1) clearly shows that even persons who have been dropped by the police during the investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the expression "any person not being the accused". The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section 319 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. There is no question of cross-examining the witness prior to adding such person as accused. Section 319 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." 8. In the instant case, Mohan Lal complainant has been examined. His examination-in-chief is complete. From the perusal of the statement of Mohan Lal, there is prima facie complicity of the petitioner in the crime, therefore, the trial Court has rightly summoned the petitioner as an accused. 9. For the reasons recorded above, there is not merit in this petition. The same is dismissed.