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2019 DIGILAW 2716 (PNJ)

Amandeep Singh Alias Bhalu v. State Of Punjab

2019-10-03

SHEKHER DHAWAN

body2019
JUDGMENT : Shekher Dhawan, J. 1. Present revision petition is directed against the order dated 2.4.2019 passed by learned Additional Sessions Judge, Sangrur whereby petitioner, Amandeep Singh alias Bhalu son of Harbans Singh was ordered to be summoned as an additional accused to face trial alongwith others. 2. Facts relevant for the purpose of decision of the present revision petition; FIR No. 95 dated 31.07.2018 under Sections 302, 341, 323, 148 and 149 IPC was registered at Police Station Cheema, District Sangrur on the basis of statement of Amarjit Singh and the matter was investigated. After investigation, challan was presented in the Court against Harbans Singh, Nirmal Singh alias Bhola, Avtar Singh alias Tari, Sukhchain Singh, Kulwinder Singh alias Soni and Balwinder Singh alias Gaggi. At that time, it was mentioned that an enquiry in the application for declaring accused Amandeep Singh alias Bhalu was pending with Deputy Superintendent of Police, Sunam and that on completion thereof, supplementary challan would be filed. 3. During trial, complainant Amarjit Singh was examined as PW1 and he narrated the part and role of petitioner, Amandeep Singh alias Bhalu. As per the complainant, the alleged occurrence had taken place in pursuance of common intention with other co-accused. At the time of occurrence, accused Harbans Singh and Nirmal Singh armed with spades, Avtar Singh and Sukhchain Singh son of Harbans Singh, armed with wooden Tumbas, Amandeep Singh alias Bhalu, Kulwinder Singh and Balwinder Singh armed with dandas and they committed the murder of Sukhchain Singh, son of the complainant. As per the complainant, the role of Amandeep Singh alias Bhalu was also detailed in the statement of Balwinder Singh recorded under Section 161 Cr.P.C., specific role is attributed to the accused including Amandeep Singh alias Bhalu, but he was shown in column No.2. 4. Learned trial Judge on the basis of statement of the complainant and material before the Court, passed the impugned order dated 12.03.2019 whereby, on an application under Section 319, Amandeep Singh alias Bhalu was ordered to be summoned as an additional accused to face trial alongwith other co-accused. 5. 4. Learned trial Judge on the basis of statement of the complainant and material before the Court, passed the impugned order dated 12.03.2019 whereby, on an application under Section 319, Amandeep Singh alias Bhalu was ordered to be summoned as an additional accused to face trial alongwith other co-accused. 5. Learned counsel for the petitioner mainly contended that the said order is liable to be set-aside because the complainant had come with the version that police had investigated the matter on the basis of statement of the complainant and witnesses under Section 161 Cr.P.C. that accused persons against whom challan was presented and Amandeep Singh alias Bhalu had committed the murder of Sukhchain Singh son of the complainant. He further contended that the report under Section 173 Cr.P.C. was submitted against the co-accused only and not against Amandeep Singh alias Bhalu as enquiry was pending before the Superintendent of Police. Thereafter, on the basis of enquiry report dated 19.12.2018 submitted by Superintendent of Police, Sangrur, it was found that at the time of alleged occurrence, Amandeep Singh alias Bhalu was not present on the spot, rather he was present in his house. No person or resident of the village had seen Amandeep Singh alias Bhalu while causing injury to Sukhchain Singh and on that basis enquiry report was submitted. 6. Learned counsel for the petitioner further contended that summoning of a person as an additional accused while exercising powers under Section 319 Cr.P.C. should be ordered sparingly and not in a routine manner especially when the police had not submitted the charge sheet against him. On this point, reliance was placed on the judgment from Hon’ble Apex Court in Sarabjit Singh & Anr. Vs. State of Punjab & Anr., (2009) 3 RCR(Cri) 388. 7. Learned counsel for the petitioner further contended that as per statement of the complainant, even there was nothing to establish that there was any prior meeting of the mind of Amandeep Singh alias Bhalu with other accused while committing murder of Sukhchain Singh and as such, order of summoning of the petitioner as additional accused is liable to be set-aside. On this point, reliance was placed on the judgment from Coordinate Bench of this Court in Bakhshish Singh Sarpanch Vs. State of Punjab and another, (2018) 4 RCR(Cri) 164. 8. On this point, reliance was placed on the judgment from Coordinate Bench of this Court in Bakhshish Singh Sarpanch Vs. State of Punjab and another, (2018) 4 RCR(Cri) 164. 8. Learned counsel for the petitioner also contended that on the basis of complaint and statement of the witnesses, during investigation, enquiry was conducted by Superintendent of Police and on the basis of his enquiry, he had come to the conclusion that Amandeep Singh alias Bhalu was not present at the place of occurrence, rather he was present in his house. Such an enquiry report cannot be discarded and order passed in such a case while exercising powers under Section 319 Cr.P.C. is liable to be set-aside. On the same point reliance was placed on the judgments from Co-ordinate Benches of this Court in Sukhwinder Kaur and others Vs. State of Punjab and others, 2018 3 LawHerald 1903 and Rachhpal Singh Gai Vs. State of Punjab, 2019 1 RCR(Cri) 158. 9. Learned State counsel contended that learned trial Judge has rightly exercised the discretion lawfully vested in him. The name of Amandeep Singh alias Bhalu had come in the statement of the complainant and Balwinder Singh, recorded immediately after the occurrence and specific role has been attributed to Amandeep Singh alias Bhalu. However, Superintendent of Police has recorded conclusion that Amandeep Singh alias Bhalu was not involved in the case only on the ground that he was not present on the spot, rather Amandeep Singh alias Bhalu was present in the house. At the best, the same is plea of alibi. More so, the enquiry report submitted by the police officials during enquiry is not binding on the Court and learned trial Judge while exercising powers under Section 319 Cr. P.C. has power to consider the material and evidence available on the file so as to come to the conclusion that there is some material to summon any body else as an additional accused. 10. Having considered the submissions made by learned counsel for the parties and appraisal of record, this Court is of the considered view that there is no dispute on the fact that complainant Amarjit Singh had stated the role of Amandeep Singh alias Bhalu immediately after the occurrence. 10. Having considered the submissions made by learned counsel for the parties and appraisal of record, this Court is of the considered view that there is no dispute on the fact that complainant Amarjit Singh had stated the role of Amandeep Singh alias Bhalu immediately after the occurrence. After conducting enquiry, the Superintendent of Police came to the conclusion that Amandeep Singh alias Bhalu was not involved in the present case only on the ground that he was not present on the spot, rather he was present in the house. There was no valid ground or reason for the Superintendent of Police to exonerate Amandeep Singh alias Bhalu simply on the basis of statements having been recorded from the residents of the village. While exercising powers under Section 319 Cr.P.C., learned trial Judge shall not be bound by the conclusion recorded by any authority during investigation proceedings, rather it is the judicial order to be passed by the Court. Needless to mention that such power to summon any person as an additional accused is a vast power given to the Court, but the same is to be exercised judiciously. 11. Similar matter was before the Constitution Bench of Hon’ble Apex Court in Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 , and Hon’ble Apex Court observed as under:- 8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the Accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under Code of Criminal Procedure indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. xx xx xx 12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. 13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said Accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.? xx xx xx 19. The court is the sole repository of justice and a duty is cast upon it to uphold the Rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an Accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence. 12. As per view taken by Hon`ble Apex Court in Hardeep Singh's case (supra), the judgments referred to and relied upon by learned counsel for the petitioner are distinguishable because the name of the petitioner had come initially and specific role has been attributed to him that he was present at the spot and in furtherance to common intention with other accused persons, committed the murder of Sukhchain Singh, son of the complainant. On the one hand, there is statement of eye-witness and on the other hand, the Superintendent of Police has submitted the report that the residents of the village had deposed that Amandeep Singh was not present in the house. On the one hand, there is statement of eye-witness and on the other hand, the Superintendent of Police has submitted the report that the residents of the village had deposed that Amandeep Singh was not present in the house. At this stage, this Court agrees with the plea raised by learned counsel representing the respondent that at the best, the same is a plea of alibi and may be taken as defence during trial by Amandeep Singh. But, it appears that there was no material before the Superintendent of Police to record such finding that Amandeep Singh was not present on the spot, rather he was present in his house. The Superintendent of Police has not given the names of residents of the village, who had stated so during enquiry proceedings. However, at this stage, without expressing any opinion on the merits of the case, lest that may cause prejudice to either of the parties, it is made clear that the above observations shall be taken as expression of opinion by learned trial Judge in either way. 13. In view of the above, this Court is of the considered view that learned trial Judge has exercised the powers judiciously lawfully vested in him and no interference is called for in the order passed by learned Court below. Resultantly, the present revision petition stands dismissed in the above terms.