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2009 DIGILAW 266 (PNJ)

Dharambir v. State of Haryana

2009-02-02

RAJIVE BHALLA

body2009
JUDGMENT Rajive Bhalla, J. (Oral) - Prayer in this petition is for setting aside the order dated 21.11.2007, passed by the Additional Sessions Judge, Kaithal, summoning the petitioners to stand trial as accused with the already arraigned accused. 2. Counsel for the petitioners submits that while ordering that the petitioners be summoned to stand trial, the learned trial Court has merely held that as the names of both the petitioners are mentioned in the testimony of PW-1 Suresh Devi, they are ordered to be summoned. It is argued that the mere mention of the petitioners names, is insufficient to pass an order under Section 319 of the Code of Criminal Procedure. A Court, while considering a prayer for summoning of any person under Section 319 of the Code, is required to record a positive finding that it appears from evidence that any person, who has not been arraigned as accused has committed any offence, for which he can tried with the already arraigned accused. It is submitted that as no such finding has been recorded by the learned trial Court, the impugned order be set aside. It is further submitted that as per the medical opinion, no poison was administered to the complainant and, therefore, the learned trial Court should have awaited the conclusion of the complainants cross-examination and the medical evidence before proceeding to hurriedly pass a order under Section 319 of the Code. 3. Counsel for the State of Haryana, on the other hand, submits that as the allegations levelled against the petitioners are clear and categoric, the learned trial Court rightly directed their summoning, as additional accused. It is submitted that there is no error, whether of fact or of jurisdiction and therefore, the present petition be dismissed. 4. I have heard learned counsel for the parties and perused the impugned orders. 5. A perusal of the impugned order leaves no manner of doubt that the learned trial Court has committed an error of jurisdiction, as it has failed to record any finding in terms of provisions of Section 319 of the Code. Section 319 of the Code reads as follows :- "319. 5. A perusal of the impugned order leaves no manner of doubt that the learned trial Court has committed an error of jurisdiction, as it has failed to record any finding in terms of provisions of Section 319 of the Code. Section 319 of the Code reads as follows :- "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 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) than - (a) the proceedings in respect of such person shall be commenced a 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 commenced." 6. Before proceeding to summon a person to stand trial with the already arraigned accused, the Court is required to record a positive finding that the person sought to be summoned has committed an offence, for which he could be tried together with the already arrugned accused. The learned trial Court, however, failed to record any such finding and proceeded to pass a perfunctory order devoid of any reason. It must be emphasised that a criminal trial may deprive a person of his liberty and, therefore, applications under Section 319 of the Code require serious consideration. It would be necessary to mention here and as per the opinion of the medical Board (Annexure P-3), no poisonous substance was administered to the complainant. It must be emphasised that a criminal trial may deprive a person of his liberty and, therefore, applications under Section 319 of the Code require serious consideration. It would be necessary to mention here and as per the opinion of the medical Board (Annexure P-3), no poisonous substance was administered to the complainant. The trial Court, should have, therefore, awaited the conclusion of the complainants cross-examination and the leading of medical evidence, but instead proceeded post haste to summon the petitioners, on the basis of allegations, appearing in the deposition of the complainant, which in essence are a repetition of the allegations levelled in the FIR. It would, therefore, be necessary to set aside the impugned order and direct the trial Court to decide the application, filed under Section 319 of the Criminal Procedure Code, afresh. 7. In view of what has been stated herein above and without expressing any opinion as to the merits of the controversy, the revision petition is allowed. The order dated 21.11.2007, passed by the Additional Sessions Judge, Kaithal, is set aside and the learned trial Court is directed to consider the matter afresh and pass appropriate orders in accordance with law. The learned trial Court would be free to wait the conclusion of the cross-examination of the complainant, if not already concluded and any other evidence that in its opinion is relevant for deciding the application filed under Section 319 of the Code. 8. Parties are directed to appear before the trial Court on 2.3.2009. Petition allowed.