Mehinder Singh Sullar, J.(Oral) -
The epitome of the facts, which needs a necessary mention for a limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record is that, Leela Ram (deceased) was working as a Driver in the Irrigation Department. On 16.06.2001, Subhash Chand Sharma (main accused), Superintending Engineer suspended him(deceased). Leela Ram had left his house on 18.06.2001, subsequently committed suicide and left a suicide note(Exhibit "PA"), which is to the following effect:-
I, Lila Ram driver state that I am committing suicide on account of the harassment I received at the hands of Shri Subhash Chand Sharma, Superintending Engineer. Shri Subhash Chand Sharma, S.E. is a cause of my death and Piare Lal Sharma, S.D.O. has incited Subhash Chand Sharma S.E. and got him harassed at his hands. After his death Subhash Chand Sharma S.E. would be responsible for his children. Legal proceedings be brought against him."
2. The case of the prosecution further proceeds that on 18.06.2001, at about 7.00 P.M., Sidharth Shanker @ Mannu son of Subhash Chand Sharma, accused, had come to the house of Leela Ram in his absence, where his son Rakesh was present. He was stated to have abused Rakesh Kumar-complainant, son of the deceased and threatened him with dire consequences to eliminate his entire family, but the petitioner was stated to have been apprehended by the neighbourers.
3. Levelling a variety of allegations and narrating the sequence of events, on the basis of suicide note(Exhibit "PA") and in the wake of complaint of complainant Rakesh Kumar(PW-3) son of Leela Ram(deceased), the present case was registered against the main accused Subhash Chand Sharma, vide FIR No. 136 dated 22.06.2001, on accusation of having committed the offence punishable under Sections 341 and 306 IPC, by the police of Police Station City, Narnaul.
4. After completion of the investigation, final police report/challan in terms of Section 173(2) Cr.P.C. was submitted against the main accused-Subhash Chand Sharma by the police and he was accordingly charge-sheeted, for the commission of indicated offence by the trial Judge, by virtue of order dated 09.09.2002(Annexure P-2) in the following manner:-
"That on or about the intervening night of 18/19.6.2001 in the area of Narnaul falling within the jurisdiction of Police Station, City Narnaul, Lila Ram driver of Irrigation Department committed suicide and that you above named accused abetted its commission by harassing said Lila Ram driver by putting him under suspension and debarring him from entering into the Canal Colony, Narnaul on 16.6.2001, and thereby committed an offence punishable under section 306 IPC within my cognizance. Secondly, you above named accused on or about the same day, time and place wrongfully restrained Lila Ram driver (now deceased) from entring Canal Colony, Narnaul and thereby committed an offence punishable under section 341 IPC and within my cognizance. And I hereby direct that you be tried by me on the above said charge."
5. Having framed the charges the case was slated for evidence of the prosecution. The prosecution in order to substantiate the charges framed against the main accused, examined three witnesses including the complainant- Rakesh Kumar son of Leela Ram as PW3, who made his statement Annexure P-3. Thereafter, an application under Section 319 Cr.P.C. was moved on behalf of the prosecution, to summon one Piare Lal, S.D.O. and petitioner-Sidharth Shanker @ Mannu son of Subhash Chand Sharma, as additional accused to face the trial. However, the trial Judge did not summon Piare Lal, S.D.O. but summoned the petitioner as an additional accused, to face the trial under Sections 452 and 506 IPC along with the main accused, by means of impugned order dated 21.03.2003.
6. The petitioner did not feel satisfied and preferred the present revision petition, challenging the impugned summoning order dated 21.03.2003, invoking the provisions of Section 401 Cr.P.C. That is how, I am seized of the matter.
7. Having heard the learned counsel for the parties, having gone through the record and legal provision with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context.
8. As is evident from the record that, in the wake of complaint of complainant and suicide note(Exhibit "PA"), a criminal case was registered against the main accused-Subhash Chand Sharma, Superintending Engineer. The matter was investigated. Having completed all the codal formalities, charges for the commission of offence punishable under Sections 306 and 341 IPC were framed against the main accused. The prosecution claimed that on 18.06.2001, when the deceased had already left his house, the petitioner came to his house with knife and threatened his son, the complainant(PW3) with dire consequences to eliminate his entire family.
9. Meaning thereby, this occurrence is entirely a different and independent incident and has no nexus or co-relation with the death of Leela Ram (deceased), who subsequently committed the suicide during the intervening night of 18/19.06.2011. Still, the trial Court summoned the petitioner as an additional accused to face the trial with the main accused, in exercise of powers under Section 319 Cr.P.C., by way of impugned order dated 21.03.2003.
10. Such, thus, being the position on record, now the short and significant question, though important, that arises for determination in this revision petition is as to whether the trial Judge has the jurisdiction to summon the petitioner(Sidharth Shanker @ Mannu), to face the trial for an entirely different and independent incident along with the main accused(Subhash Chand Sharma), in a offence subsequently committed by him under Section 306 IPC or not?
11. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative.
12. What cannot possibly be disputed here is that, the independent occurrence, for which the petitioner was summoned, originated on 18.06.2001 in the house of the complainant, when the deceased had already left his house. Deceased- Leela Ram subsequently committed suicide, for which a criminal case under Sections 306 and 341 IPC was registered against the main accused-Subhash Chand Sharma, father of the petitioner. That means, the first occurrence of 18.06.2001 has got no connection and is not at all relatable to the offence of suicide committed by Leela Ram(deceased).
13. As is clear that, Section 319 Cr.P.C. postulates that, 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.
14. Sequelly, Section 319(4)(b) further posits that 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.
15. A conjoint and meaningful reading of these provisions would reveal that it will have to be presumed that the newly-added person had been an accused person of an offence, when the Court took cognizance of the offence (under Section 306 IPC), upon which the inquiry or trial was commenced. Meaning thereby, the Court had already taken cognizance of the offence and by virtue of Section 319(4)(1)(b), a legal fiction is created that the cognizance would be presumed to have already been taken as against this newly-added accused as well under the same Section (306 IPC). This, to me, is the indicative of the fact that the Court is not at all empowered to take cognizance of any fresh/independent offence, for which the main accused was not charged and the newly-added accused could be tried only for the offence already taken cognizance against other accused for the offence (under Section 306 IPC) and not otherwise. Likewise, a person can be impleaded as additional accused only if it is found that he could be tried only for that offence, for which the main accused was charged (under Section 306 IPC).
16. Ex facie, the celebrated argument of the learned State Counsel that the petitioner was rightly summoned, to face the trial under Sections 452 and 506 IPC in regard to different offences, is not only devoid of merit but misplaced as well. If this argument is accepted, in that eventuality, it will amount to add such offences against the petitioner, which were neither investigated, nor final police report was submitted by the police. This, to my mind, is not legally permissible.
17. As in the present case, the incident of 18.06.2001 is entirely a different and independent incident and is not, in any manner, relatable with the subsequent suicide of Leela Ram(deceased). Neither there is any allegation, nor a slightest role is attributed to the petitioner in the suicide note(Exhibit "PA"), nor there is an iota of evidence on record, much less cogent, even to suggest remotely that, he(petitioner) is, in any way, directly or indirectly involved in the commission of offence under Section 306 IPC. If the scope of this Section is enlarged to that extent, then the complainant would be free to move such applications to include anybody as an accused, who was alleged to have committed any prior or subsequent independent offence, not relatable to the main offence, for which the main accused was charged. Since, the allegations alleged against the present petitioner are entirely different, relatable to an independent offence and has no nexus with the offence under Section 306 IPC, for which the main accused was charge-sheeted, so, the trial Court did not have the jurisdiction to summon him (petitioner) under Sections 452 and 506, in exercise of power under Section 319 Cr.P.C.
18. There is another aspect of the matter, which can be viewed from a different angle. It is now well-settled proposition of law that, the Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub- section(4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them, in order to reach the stage where it had reached earlier. If the main witnesses have already been examined, then the Court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is a reasonable prospect of the case as against the newly-added accused ending in conviction of the main concerned offence. The trial Court is not always legally required to summon such accused in a routine manner, as and when any such application under Section 319 Cr.P.C . is made out. There is no compelling duty on Cou
Please Login To View The Full Judgment!
rt to proceed against other persons in this relevant behalf, in view of the law laid down by the Hon'ble Apex Court in case Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) R.C.R.(Criminal) 75 : 2000(3) SCC 262. 19. Therefore, to me, as the trial Court has exceeded its jurisdiction, committed material irregularity and patent illegality, so, the impugned order cannot legally be maintained and deserves to be quashed, in the obtaining circumstances of the case. 20. No other legal point, worth consideration has either been urged or pressed by the learned counsel for the parties. 21. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, the instant revision petition is accepted. The impugned order dated 21.03.2003 is hereby set aside. Consequently, the application under Section 319 Cr.P.C. filed on behalf of the prosecution stands dismissed. 22. Needless to mention that, nothing observed here-in-above, would reflect, in any manner, on the merits of the main case, as the same has been so recorded for a limited purpose of deciding the instant revision petition.