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2003(3) Supreme 340
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
Y.K. Sabharwal and H.K. Sema, JJ.
Jarnail Singh & Anr. -Appellants
versus
State of Haryana & Anr. -Respondents
Petition for Special Leave to Appeal (Crl.) Nos. 2941-2942 of 2002
Decided on 9-4-2003
Counsel for the Parties :
For the Petitioners : Jaspal Singh, Sr. Advocate, Vipin Gogia, Ms. Jaspreet Gogia, Advocates.
For the Respondents : Arvind Nayar, Ms. Kavita Wadia, Mahabir Singh, Ajay Pal T.V. George and Rakesh Dahiya, Advocates.
Held : The power of summoning under Section 319(1) is required to be sparingly used it being a discretionary power but on facts of the present case, it cannot be held that the discretionary power has not been properly and legally used. The power is to be exercised to achieve criminal justice. As already noticed, though occurrence is the same but there are two versions - one in the Police case and the other in the case in which the petitioners have been directed to be summoned. In case the petitioners are not before the Court as accused in the case in hand, the Court would not be in a position to convict and appropriately sentence them even if the version of the occurrence as given by Respondent No.2 is accepted and held proved beyond reasonable doubt against the petitioners. (Para 15)
Held consequently : In view of the above discussion, we find no substance in the petitions and the same are accordingly dismissed. (Para 16)
JUDGMENT
Y.K. Sabharwal, J.-On an application filed by respondent No. 2 (complainant) under Section 319 of the Code of Criminal Procedure (Code), the petitioners, in terms of the orders passed by Additional Sessions Judge, Karnal, have been summoned to face trial in Sessions Case No. 167 of 1999 for the offence under Sections 148, 302, 307 read with Section 149 of the Indian Penal Code (IPC). The order has been upheld by the High Court and the criminal revision petitions have been dismissed. The order of the High Court is under challenge in these petitions.
2. In nutshell, the case set up by respondent No. 2, son of the deceased, in complaint is that on 8th October, 1998, the accused armed with weapons came to the disputed land and tried to stop him and his brother from ploughing land by standing in front of their tractor. A shot fired hit the deceased Gurcharan Singh who fell down and died. When respondent No.2 and his brother went to the Police Station, they found the accused already present with the Police. The Police did not listen to them. They also went to hospital but hospital authorities refused to conduct the medical examination saying that it was a Police case and medical examination could be done at the instance of Police. The medical examination of his bother Baljinder Singh was conducted on 9th October, 1998 after an order was obtained from the Court. The Police instead of registering the case against the accused, with a view to help them, registered a false case against the complainant and others under Sections 302/147/148/149/447 IPC on 9th October, 1998 on the basis of the statement of one Mohabbat Singh - resident of Rame village. However, on 14th October, 1998, a case against the petitioners and three others was registered under Section 302/307 IPC. Since the Police did not challan Mohabbat Singh and Bhira Singh, a complaint was filed by respondent No.2 on 27th November, 1998 against seven persons including the petitioners and others against whom FIR had been registered on 14th October, 1998 and other two persons who had been left out, namely, Mohabbat Singh and Bhira Singh. The Magistrate directed summoning of Mohabbat Singh and Bhira Singh as respondent No.2 on 21st July, 1999 stated before the Magistrate that he did not wish to pursue the complaint against the petitioners and three others as they had already been charged by the Police under Section 302 IPC in the case registered against them on 14th October, 1998. The complaint case was committed to the Court of Sessions against Mohabbat Singh and Bhira Singh. It is in this case that now the petitioners have been summoned by learned Additional Sessions Judge whose order has been upheld by the High Court.
3. The question for determination is as to the applicability of Section 319 of the Code, under the aforesaid facts and circumstances, to the petitioners who are already accused in a Police case in respect of the same occurrence. It cannot be disputed that the version of occurrence in the complaint case that has been committed to Sessions is materially different than the version in Police case. In order to appreciate the rival contentions, it would be useful to reproduce Section 319 of the Code which reads as under :
"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 com
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