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2017 (11) TMI 1984 - HC - Indian LawsSmuggling - Proclaimed Offenders - jurisdiction to summon additional accused persons - authenticity of the evidence in terms of Section 65-B of the Evidence Act - HELD THAT - The petitioners are not the complainants in the present case who have been summoned but they are additional proposed accused - It would be appropriate to find out the ratio decidendi laid down in the decision in RAVINDER SINGH VERSUS STATE OF PUNJAB AND ANOTHER 2017 (3) TMI 1883 - PUNJAB AND HARYANA HIGH COURT . The question framed clearly shows that what was considered by this Court was as to whether the complainant in the FIR case himself can be summoned as an accused based on the deposition of defence witnesses before the trial Court as the proposed accused is required to be tried together with the accused already on trial - In the present case the above said position on the basis of the aforesaid question is not relevant and therefore the said decision has no application in the present case. The petitioners are not the complainants in the present case who have been summoned but they are additional proposed accused. The next submission of the learned senior counsel for the petitioners is that the trial Court became functus officio on the date of judgment i.e. 31.10.2017 - HELD THAT - The power under Section 319 Code of Criminal Procedure can be exercised even after the judgment is concluded. In that case the accused persons were acquitted by the trial Court and after four months of the conclusion of the trial the trial Court exercised the power under Section 319 Code of Criminal Procedure for summoning the additional accused - The present case stands on a better footing inasmuch as the order was passed under Section 319 Code of Criminal Procedure simultaneously with the judgment and order of conviction of the original accused persons. The contention raised by the learned counsel for the petitioners thus stands disposed of. A look at the evidence of PW-4 Ajmer Singh PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh which has been relied upon by the trial Court for exercising power under Section 319 Code of Criminal Procedure shows that some part of the evidence is admissible while some part of the evidence is inadmissible. But then as earlier stated the same can be subject matter of objection in de novo trial - whether Exhibit DX and its documents and the call records filed along with the writ petition are admissible or not is a matter of proof before the trial Court and certainly the petitioners are entitled to object to the admissibility of the documents for want of legal proof in the de novo trial. To say that Exhibit DX or the certified copy of the writ petition could not be looked into by the trial Court would be to prohibit the prosecution from effectively participating in the de novo trial. That would not serve the interest of justice. The next submission made by the learned senior counsel for the petitioners is that the trial Court could not have directed filing of supplementary charge-sheet as the trial Court does not have such power as held by the Apex Court in some decisions. There are no doubt that the law is trite that the Court does not have power to order filing of supplementary charge-sheet. But then there are peculiar facts in the present case - It is a settled legal position that filing of supplementary challan one or in multiples is permissible under Section 173 Code of Criminal Procedure. To contend that first supplementary challan was filed and in that the petitioners were not named would be no answer because the authority to file one more supplementary charge-sheet of the investigating machinery has not been taken away. Therefore the investigating agency is entitled to file supplementary charge-sheet. The next submission made by the learned senior counsel for the petitioners that the trial Court should not have issued non-bailable warrants against the accused must be upheld - HELD THAT - It is a well settled legal position that such a course of action should not be pressed into service. The trial Court has not recorded a single reason as to why instead of issuing summons straightway warrants have been issued. The trial Court has overdone it. The trial Court was not at all justified in doing so. Hence the said part of the order issuing non-bailable warrants for securing the presence of the petitioners must be set aside. The impugned order under Section 319 Code of Criminal Procedure will have to be upheld - revision dismissed.
Issues Involved:
1. Allegations of mala fide actions by the prosecution. 2. Petitioners not being named in the initial stages of the investigation. 3. Timing and validity of the application under Section 319, Code of Criminal Procedure (CrPC). 4. Admissibility and legality of evidence used to summon additional accused. 5. Legality of the trial court’s direction to file a supplementary charge-sheet. 6. Issuance of non-bailable warrants against the petitioners. Detailed Analysis: 1. Allegations of Mala Fide Actions by the Prosecution: The petitioners argued that the prosecution's actions were mala fide and aimed at damaging the reputation of one petitioner, who is a political figure. However, the court found no specific allegations or adequate pleadings against any particular person. It was noted that the FIR was registered when a different government was in power, and the petitioner had withdrawn a petition for a CBI investigation, undermining claims of serious mala fide actions. 2. Petitioners Not Being Named in Initial Investigation Stages: The petitioners contended that they were not named in the FIR or during the initial investigation stages. The court held that this argument was irrelevant to the power of the court under Section 319 CrPC, which allows summoning additional accused if sufficient evidence emerges during the trial. 3. Timing and Validity of the Application under Section 319 CrPC: The petitioners claimed that the trial court became functus officio after delivering the judgment and could not summon additional accused. The court referred to the Supreme Court's decision in Shashikant Singh v. Tarkeshwar Singh, which allows the exercise of power under Section 319 CrPC even after the conclusion of the trial. The court emphasized that a de novo trial must be conducted for the newly added accused, and the trial court's simultaneous order to summon additional accused on the judgment date was valid. 4. Admissibility and Legality of Evidence: The petitioners argued that the evidence used to summon them was inadmissible. The court noted that issues of evidence admissibility and relevance are matters for the trial and can be contested during the de novo trial. The court found that some parts of the evidence were admissible, and the prosecution could present additional evidence during the de novo trial. The court also allowed the prosecution to file certified copies of documents, including the writ petition filed by one petitioner, as evidence. 5. Legality of the Trial Court’s Direction to File a Supplementary Charge-Sheet: The court acknowledged that while a trial court cannot order the filing of a supplementary charge-sheet, the investigating agency has the liberty to file one under Section 173 CrPC. The court modified the trial court's order to reflect this, allowing the investigating agency to file a supplementary charge-sheet if deemed necessary. 6. Issuance of Non-Bailable Warrants Against the Petitioners: The court found that the trial court overstepped by issuing non-bailable warrants without recording reasons. The court quashed this part of the order and allowed the petitioners to apply for anticipatory or regular bail before the trial court, which should consider such applications on their merits. Conclusion: The court upheld the trial court's order under Section 319 CrPC but modified the direction regarding the supplementary charge-sheet. It quashed the issuance of non-bailable warrants and allowed the petitioners to seek bail. The trial court's decision to summon additional accused was found to be legally sound, and the evidence issues were left to be addressed during the de novo trial.
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