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2018 DIGILAW 1563 (HP)

State of Himachal Pradesh v. Anil Kumar

2018-08-27

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition, under Sections 397 and 401 of the Code of Criminal Procedure, has been maintained by the petitioner/State of Himachal Pradesh, against the order dated 23.12.2016, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. (Camp at Bilaspur), in Cr. MP No. 266/4 of 2016, whereby an application, under Section 319 of the Code of Criminal Procedure (hereinafter to be called as “the Code”) for arraying two persons namely Sammy and Vinod Kumar as co-accused in the present case, has been dismissed. 2. As per the prosecution, during the trial, the complainant, Ashok Kumar as well as his father Krishan Singh, while appearing in the witness box as PW-1 and PW-8, had stated that the persons mentioned in para-1 supra, had also caused injuries to the complainant, in addition to the accused. Therefore, it has been prayed that in view of the said piece of evidence, it is sufficient to hold the aforesaid persons guilty of the offence besides accused Anil Kumar and they are liable to be arrayed as co-accused in the present case. 3. In reply to the application, it has been pleaded that the application filed by the prosecution is an afterthought, with a view to delay the proceedings and there is nothing sufficient in the evidence to allow the prayer made in the application, thus the application deserves to be dismissed. 4. Learned Additional Advocate General has argued that the learned Court below without application of mind and on the basis of surmises and conjectures dismissed the application filed by the prosecution, as such, the present petition deserves to be allowed and the order passed by the learned Court below deserves to be set aside. On the other hand, learned vice counsel appearing on behalf of the respondent has argued that there is no material to proceed against the respondent and even after examination of the witnesses, nothing has been found against the persons named in the application. He has further argued that the application has been moved just to delay the proceedings, so the same has rightly been dismissed by the learned Court below and such well reasoned findings need no interference. 5. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail. 6. He has further argued that the application has been moved just to delay the proceedings, so the same has rightly been dismissed by the learned Court below and such well reasoned findings need no interference. 5. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail. 6. PW-3, PW-4, PW-5 and PW-6 have specifically denied the suggestion that Sammy and Vinod were also involved in the incident. Therefore, it cannot be said that the aforesaid persons were also guilty of the alleged offence. Furthermore, the application has been maintained by the prosecution only after all the independent witnesses in the case had turned hostile and had not supported the case of the prosecution. In these circumstances, if the prayer of the prosecution is considered at this stage, it would be extremely prejudicial to not only the persons named in the application, but also to the accused, Anil Kumar. 7. The discretion under Section 319 of the Code of Criminal Procedure is reproduced as under for ready reference: “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. (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 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. Meaning thereby that the discretion under Section 319 of the Code has to be exercised very sparingly and with caution and only when the Court is satisfied that some offence had been committed by such person. 8. In final report under Section 173 Cr. P.C. filed by the Police, it has been categorically mentioned that during investigation the persons named in the application, had been throughly interrogated, however their involvement had not been found in the alleged offence. Further, despite examination of eight witnesses, nothing material has come against the persons named in the application to array them as accused persons. 9. After taking into consideration the evidence, which have come on record, this Court finds that the order passed by the learned Court below is just and reasoned and after appreciating the law and the evidence correctly, as there is no material on record to prove the involvement of persons named in the application in the alleged incident. Accordingly, the present petition is dismissed and the order passed by the learned Court below is upheld. Let records of the learned Court below be sent back forthwith. 10. The petition, so also pending miscellaneous application (s), if any, stands disposed of.