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2016 DIGILAW 1168 (HP)

Ved Prakash v. State of Himachal Pradesh

2016-06-24

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This revision petition under Section 482 read with Sections 397/401 of the Criminal Procedure Code is directed against the order dated 16.7.2015 passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, whereby he affirmed the order passed by learned trial Magistrate and allowed the application of the State for summoning the petitioner as a co-accused. 2. The instant case is one where the learned Courts below have completely misread the statement of the complainant under Section 154 Cr.P.C. and committed the same mistake while appreciating her statement recorded in the Court to come to the conclusion that the petitioner had been specifically named by her in both these statements. The relevant portion of the order passed by the learned Magistrate on 22.9.2007 reads as under: “I have gone through the case file in view of the contention of Ld. APP made in the application. After perusal of the challan it is clear that the complainant had taken name of this Ved Parkash categorically while getting her statement recorded u/s 154 Cr.P.C. but if we go through the challan put forth by police no explanation has been given why this person has not been made accused. Now in deposition before the court the complainant has again asserted that this person has abetted the offence and it is on his instigation that the accused persons demolished the structure of temple and removed the idol of Goddess Baglamukhi which was worth Rs.12,000/-. The prosecution is also realized that this person should have been made accused which was not done by the Investigating Agency as evident from the fact of filing of this application….” 3. Surprisingly, the learned Additional Sessions Judge, without caring to go through the records of the case concluded as follows: “11. After having heard rival contentions of the parties, the arguments advanced on behalf of the revisionist appear to be not tenable in the eyes of law because the Ld. trial Court has taken into consideration entire facts of the case. In order to arrive at a right conclusion, the facts and circumstances of the case have been taken into consideration by the ld. trial Court. There are specific allegations against the revisionist in the FIR and his name had been disclosed to the police by the complainant, but interestingly he was not made accused by the police. In order to arrive at a right conclusion, the facts and circumstances of the case have been taken into consideration by the ld. trial Court. There are specific allegations against the revisionist in the FIR and his name had been disclosed to the police by the complainant, but interestingly he was not made accused by the police. The complainant in the court as PW-1 again stated against the revisionist, therefore ld. trial court has rightly summoned him vide order dated 22-09-2007. There is no illegality or perversity in the impugned order and order under challenge is well reasoned.” 4. In order to test the veracity and correctness of such findings, the records of the case were called for. The relevant portion of the statement of the complainant under Section 154 Cr.P.C. reads as under: ^^--------------vkt fnukd 30-8-2002 le; djhc 12 cts fnu osn izdk'k ds vkneh ftuesa nks fry&foYy o osn izdk'k ds ukSdj tks fd dqy 10&15 vkneh FksaA ;g lkjs ge e'ojk o lykg cukdj bdVBs gks dj vius gkFk esa xsUrh oxSjg ysdj vk;s vkSj vkrs gh esjs ?kj ds ikl cus gq, cxyk ekrk ds efanj ftls fd eSus 3&4 igys cuk;k Fkk dks rksM+ fn;k o 'kSM Vhu dks Hkh fxjk+ fn;k rFkk cxyk ekrk ewfrZ dks mBk dj ys x;sA tc esjk Hkaktk cyfoanj flag ekSdk ds QksVks ysus yxk rks mijksDr lHkh yksx mldks tku ls ekjus ds fy, yydkjus yxs tks cM+h eqf'dy ls tku cpkdj ?kj vk x;kA bl gknlk dks pSu flag] m"kk] losrk o izrhek us viuh vka[kksa ls ns[kk gSA esjk ;gh C;ku gSA--^^ 5. To similar effect is the statement given by the complainant before the Court on 17.5.2007, the relevant portion whereof reads as under: ^^-------rks fnukad 30-8-2002 le; 12 cts fnu osn izdk'k ds vkneh o mlds ukSdj djhc 10&15 vkneh bdVBs gks dj vk;sA ftuds gkFkksa esa xsUrh;ka Fkh vkSj vkStkj Hkh FksA vkSj vkrs gh ;g yksx esjs ?kj ds ikl cus cxqyk ekrk efanj dh rjQ x;sA ftldks eSus ml fnu ls 4] 5 lky igys cuk;k Fkk dks mu yksxksa us rksM+ fn;k vkSj 'kSM Vhu dks Hkh m[kkM+ fn;k vkSj ;g yksx ewfrZ cxqyk ekrk dks ys x;sA tc esjk Hkaktk cyfoanj flag muds ekSdk ds QksVks ysus yxk rks ;g yksx mldh rjQ nkSM+s vkSj dgus yxs fd mldks idMksa&2 mldks tku ls ekj nsaxsA mldks muds Mj ls ?kj ds vanj dj fy;k Fkk vxj ?kj ds vanj u djrs rks 'kk;n ;s yksx gks ldrk gS tku ls ekj nsrsA ;g gknlk pSu flag m"kk losrk o izfrek us Hkh viuh vka[kksa ls ns[kkA fQj bl ckjk eSus brykg Fkkuk dkaxM+k dks nh fQj dgk Fkkuk okys VsyhQksu mBk gh u jgk Fks fQj eSus ,l Mh ,e vkWfQl esa Qksu fd;k ftl ij ifqyl Hkh ekSdk ij vkbZ FkhA-----^^ 6. Section 319 of the Code of Criminal Procedure, 1973 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 offence which he appears to have committed. (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 a fresh, 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. The legal position regarding the aforesaid provision has been explained and clarified by the Constitution Bench of the Hon’ble Supreme Court in Hardeep Singh vs. State of Punjab and others (2014) 3 SCC 92 , whereby it now stands settled that the standard of proof employed for summoning a person as an accused under Section 319 Cr.P.C., is higher than the standard of proof required for framing a charge against an accused. 8. Judged in light of the parameters laid down by the Hon’ble Supreme Court in Hardeep Singh’s case (supra), it would be evident that the complainant has neither in her statement under Section 154 Cr.P.C. nor in her statement recorded before the Court made a mention regarding the petitioner being present at the spot or having abetted the crime as has erroneously held by the learned Magistrate and her statement is only to the effect that the people involved in the offence were of the petitioner. No role has been assigned or attributed to the petitioner. It is also not her case that it was at the instance or the behest of the petitioner that his so called men had committed the alleged offence. 9. It is more than settled that power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are “it appears from the evidence”….”any person”……”has committed any offence”. The Court has to use the powers not only sparingly, but primarily with a view to advance the cause of criminal justice and not as a handle at the hands of the complainant to cause harassment to the person who is not involved in the commission of the crime. 10. The Court has to use the powers not only sparingly, but primarily with a view to advance the cause of criminal justice and not as a handle at the hands of the complainant to cause harassment to the person who is not involved in the commission of the crime. 10. As the order passed by the learned Courts below is based on a complete misreading of the statements of the complainant whereby they have wrongly inferred even that was not stated by the complainant, the orders passed by the Courts below cannot be withstand judicial scrutiny and to say the least are perverse and deserve to be set-aside. Ordered accordingly. 11. No other point was urged. 12. In view of the aforesaid discussion, the revision petition is allowed and the order dated 16.7.2015 passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, whereby he affirmed the order passed by learned trial Magistrate and allowed the application of the State for summoning the petitioner as a co-accused, is set-aside and quashed. The revision petition is disposed of in the aforesaid terms.