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TMI Blog2008 (11) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the Superintendent of Police not only refers to investigation made by him and the statements recorded in the course of investigation but records a `finding that the statements were `correct . Vijay Preet Singh was not present at the place of offence when the incident took place but reached after the occurrence was over. Thereafter police had arrested him. Likewise, Jagtar Singh was not present at the spot at the time of occurrence. Likewise, in an appeal arising out of Special Leave Petition (Hardeep Singh v. State of Punjab Ors.), Jagtar Singh was not charge-sheeted. Both the Courts considered the report of the IO and held that the action of non-issuing of process against Jagtar Singh could not be held illegal or unlawful. We are of the view that the order cannot be termed unlawful or unwarranted which requires interference. As far as Vijay Preet Singh is concerned, the matter stands on a different footing. His name finds place in the FIR. Not only that he was present at the place of offence with a weapon (gandasi) but was also arrested by the police from the scene of offence. His name was, however, excluded and charge sheet was not submitted in pursuance of an application m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Revision Nos. 773 of 2006 and 1648 of 2006. 3. To appreciate the contentions raised by the parties, it would be appropriate to narrate few facts. 4. In the appeal arising out of Special Leave Petition (Crl.) No. 166 of 2007, the case of the prosecution is that an auction for leasing the land was held by the Gram Panchayat of village Indrapuri, Tehsil Samana, District Patiala on April 21, 2004 for cultivation on yearly basis (Eksali) for the year 2004-05. The bid of the appellant was accepted and lease was granted in his favour. The appellant was thus in possession of the land. 5. According to the prosecution, on June 24, 2004, the appellant was ploughing the land. The accused persons went there with deadly weapons and caused injuries to the appellant as well as other prosecution witnesses. First Information Report (FIR) was lodged against the accused at Police Station Sadar, Samana for commission of offences punishable under Sections 307, 326, 336 and 427 read with Sections 120B, 148 and 149 of the Indian Penal Code, 1860 (IPC) as also for offences punishable under Sections 25, 27, 54 and 59 of the Arms Act, 1959. Accused were arrested. Vijay Preet Singh (respondent No. 2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of offence. Similarly, respondent No.3-Jagtar Singh was present with soti. He also participated in the incident by raising lalkaras. In furtherance of common object, all the accused assaulted the complainant party and committed the offences with which they were charged. It is on the basis of the report submitted by Superintendent of Police (D), Patiala to Senior Superintendent of Police, Patiala that they were discharged. An application was, therefore, made by the Addl. Public Prosecutor under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code') to include respondent Nos. 2 and 3 as accused and to summon them for trial. 10. The Court of the Addl. Sessions Judge, Patiala, however, by an order dated January 12, 2006 rejected the application observing that he did not find sufficient grounds to proceed against Vijay Preet Singh and Jagtar Singh. 11. Being aggrieved by the said order, the appellant herein approached the High Court of Punjab & Haryana by filing Criminal Revision No. 773 of 2007. The High Court, however, dismissed the Revision and confirmed the order passed by the trial Court. The said order is challenged in the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd he reached at the place of offence after the incident was over. Such report was made only with a view to oblige Sukhvinder Singh, father of Vijay Preet Singh who was Chairman of Panchayat Samiti, Samana. Even otherwise, during the course of trial, the prosecution evidence revealed that Vijay Preet Singh was present at the time of incident. A clear case for application of Section 319 of the Code had been made out and the trial Court was wrong in rejecting the application to join Vijay Preet Singh as an accused and to issue summons to him. Similar error was committed by the High Court. 17. Likewise, the Investigating Agency wrongly recommended deletion of name of Jagtar Singh. From the examination of prosecution witnesses, it was clear that Jagtar Singh was also present at the time of incident with weapon and he participated in the crime. An application under Section 319 of the Code, hence, ought to have been allowed. 18. It was submitted that even if name of a particular person is not mentioned in the FIR as an accused, he can, later on, be added as an accused and a summons can be issued by a Court in exercise of power under Section 319 of the Code. It was, therefore, submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused had 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 detailed 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 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. (emphasis supplied) 27. Sometimes while hearing a case against one or more accused, it appears to a Court from the evidence that some person other tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating his involvement in the offence, he can be summoned. 33. The Court, however, was conscious of the extraordinary nature of the power under Section 319 of the Code and stated; "(W)e would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law". (emphasis supplied) 34. In Shashikant Singh v. Tarkeshwar Singh & Anr., (2002) 5 SCC 738, during the pendency of trial of an accused, another person was summoned by the trial Court under Section 319 of the Code. But by the time he could be brought before the Court, the trial against the accused was over. It was held by this Court that the words "could be tried together with the accused" in Section 319(1) were merely directory and if the trial against the other accused is over, such a person who was subsequently added as an accused, could be tried after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y. Saraba Reddy v. Puthur Rami Reddy & Anr., (2007) 4 SCC 773 : (2007) 6 SCR 68, a three-Judge Bench of this Court to which one of us was a party (D.K. Jain, J.), a similar situation arose. In the FIR, names of certain persons were mentioned. On an application by those persons, the matter was investigated by the Deputy Superintendent of Police and the report was submitted that they were not present at the time of incident. On the basis of the report, their names were deleted from the array of accused. The case was then committed to the Court of Session. PW1, in his examination involved the said persons and an application under Section 319 of the Code was filed for issuing summons to them. The trial Court rejected the application primarily on the ground that the plea of alibi was investigated by the Deputy Superintendent of Police and was found to be correct. The High Court did not find infirmity in the order. The action was challenged in this Court. 40. Allowing the appeal and setting aside the order of the High Court, Dr. Pasayat, J. said; "If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst K but not against M (appellant). At the trial, PW1 was examined and in his examination-in-chief, he asserted that M also participated in the incident. An application was filed for summoning him under Section 319 of the Code which was rejected by the trial Court but allowed by the High Court. M approached this Court. 46. Allowing the appeal and setting aside the order passed by the High Court, this Court observed that the order passed by the High Court was not sustainable. It was held that satisfaction under Section 319 of the Code could be arrived at only after cross- examination of the witness is over. The Court stated; "The Trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same". (emphasis supplied) 47. The counsel submitted that admittedly in the instant case, cross-examination of PW2- Hardeep Singh was not over. In the course of cross-exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed together with the accused, the Court may proceed against such person for the offence which he appears to have committed". 50. The Court added; "Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term 'evidence' as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime". 51. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person should or should not be added as accused. The word "evidence" occurring in sub-section (1) of Section 319 is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the evidence which comes before the Court and from which the Court is satisfied that person not arraigned before it is involved in the commission of the crime. 55. Rakesh thus ruled that an application under Section 319 of the Code is maintainable even without completion of cross-examination of a witness. If the Court is satisfied on the basis of examination-in-chief of a witness that a person not shown to be an accused appears to have committed an offence, it can exercise the power under Section 319 of the Code. 56. According to Mohd. Shafi, however, no such order can be passed by a Court under Section 319 unless the cross-examination of the witness is complete. 57. Both the cases i.e. Rakesh and Mohd. Shafi were decided by a two Judge Bench. Whereas Rakesh was decided in 2000, Mohd. Shafi was decided in 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;. Thus, after exercise of power by the Court under Section 319(1), such added accused would be placed in the same position as other accused and will get all rights an accused can get under the Code. The proceedings against the added accused shall be commenced afresh and witnesses will be reheard. Their evidence, prior to addition of the accused cannot be used against the accused who was not there earlier. The question of prejudice, hence, does not arise at all. 61. It was submitted on behalf of the appellants that being a decision of two Judge Bench, Rakesh was binding upon Mohd. Shafi and the subsequent decision thus is per incurium. The accused, on the other hand, submitted that being latest in point of time, Mohd. Shafi should be followed by this Court. 62. In our considered opinion, however, in the light of conflicting decisions of co- ordinate Benches, (both of two Hon'ble Judges), it would be appropriate if we refer the matter to a Bench of three Hon'ble Judges. 63. In the case on hand, in an appeal arising out Special Leave Petition (Crl) No. 2051 of 2007 (Manjit Pal Singh v. State of Punjab & Anr.), there was nothing against respondent No.2-Kashmir Singh and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody under section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. 68. Sub-section (1) of Section 173 of the Code lays down that every investigation must be completed without unnecessary delay. Slackness or inordinate delay on the part of the investigating agency may result in the disappearance of material evidence which might otherwise be available and may prevent effective detection of the crime. It may also result into unnecessary detention of the accused in custody. 69. Sub-section (2) enacts that as soon as investigation is completed, the officer in charge of the police station shall forward a report to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the State Government, stating (i) the names of the parties; (ii) the nature of the information; (iii) the names of the persons who appear to be acquainted with the circumstances of the case; (iv) whether any offence appears to have been committed and, if so, by whom; (v) whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cibly from the police due to a big gathering of men. It is recommended to take legal action against Verma Gun House, Patiala". 72. We may only state that the Investigating Officer was required to submit report in terms of Section 173 of the Code and nothing more. He should not record a finding nor he can give clean chit which is a function and power of the Magistrate who will exercise the said power as provided in the Code. 73. Prima facie, in the light of factual scenario, the submission on behalf of the appellant is well-founded that name of Vijay Preet Singh ought to have been included in the charge sheet and the application under Section 319 of the Code deserves to be allowed. The learned counsel for the accused, however, referring to Mohd. Shafi, submitted that in the said decision, this Court held that the jurisdiction under Section 319 of the Code can be exercised by the Court only if the Court is satisfied that in all likelihood such person would be convicted. 74. The Court in Mohd. Shafi, stated; "From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
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