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1999 Supreme(P&H) 1241
PUNJAB AND HARYANA HIGH COURT
Mehtab S. Gill, J.
Mahindra Bai - Petitioners
Versus
State of Punjab - Respondent
Criminal Misc. No. 17309-M of 1999.
Decided On : 14 October, 1999
For the Petitioner:Mr. P.P.S. Duggal, Advocate.
For the Respondent:Mr. H.S. Sran, D.A.G., Punjab with Mr. V.K. Chabbra, Advocate.
An order dismissing an application under Section 319 CrPC is final and cannot be reviewed.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 319 - RES JUDICATA - ORDER DISMISSING APPLICATION UNDER SECTION 319 - FINAL - CANNOT BE REVIEWED - SUBSEQUENT ORDER SUMMONING ACCUSED - NOT SUSTAINABLE.
Fact of the Case:
Petitioners were shown as innocent in the challan and were not summoned as accused. However, during the trial, an application was moved under Section 319 CrPC to summon them as accused. The Judicial Magistrate dismissed the application, but later, on the statement of an eye witness, summoned the petitioners. The petitioners challenged this order in revision, which was dismissed by the Additional Sessions Judge.
Finding of the Court:
The court held that the order dismissing the first application under Section 319 CrPC had become final and could not be reviewed. The subsequent order summoning the petitioners was not sustainable.
Issues: Whether the order dismissing the first application under Section 319 CrPC was final and could be reviewed.
Ratio Decidendi: The court relied on the principle of res judicata and held that the order dismissing the first application under Section 319 CrPC had become final and could not be reviewed. The subsequent order summoning the petitioners was not sustainable.
Final Decision: The petition was allowed, and the orders summoning the petitioners were set aside.
Mehtab S. Gill, J. - The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure for setting aside the orders dated September 6, 1997 passed by the Judicial Magistrate 1st Class, Fazilka (Annexure P2) and May 6, 1999 rendered by the Additional Sessions Judge, Ferozepur (Annexure P3).
2. As per the prosecution, First Information Report No. 81 dated May 13, 1995 under Sections 454/380/440/448/427/148/149 Indian Penal Code was registered at Police Station Sadar Fazilka against Jagar Singh, Malkiat Singh, Surjit Singh, Karnail Singh, Mahindro Bai and Dalip Singh on the statement of Harbans Lal Sarpanch. During the course of investigation, the police found Mahindro Bai and Dalip Singh, present petitioners, as innocent and has shown them in column No. 2 in the challan. Statement of P.W.1 Harbans Lal was recorded by the Judicial Magistrate Ist Class, Fazilka on August 28, 1996 in which he stated that Joginder Singh, Phuman Singh and Ram Kishan members panchayat came to his house and told him that accused Jagar Singh, Malkiat Singh, Surjit Singh, Karnail Singh, Dalip Singh and Mahindro Bai had made an opening in the room of the Panchayat Ghar after breaking the wall of the Panchayat Ghar. He accompanied them to the place of occurrence and saw that the bricks of the wall had been removed and there was an opening in the wall. He then alongwith members panchayats went to the house of the accused persons and saw that the bricks were lying in the house. All the accused belong to a single family.
3. An application under Section 319 Criminal Procedure Code, was moved by the Assistant Public Prosecutor to summon the two petitioners because they were shown in column No. 2 and had not been challaned. The Judicial Magistrate Ist Class, Fazilka after hearing arguments of Assistant Public Prosecutor and the counsel for the petitioners dismissed the application vide his order dated January 10, 1997.
4. The case proceeded further. On April 8, 1997, Joginder Singh appeared in the witness-box as P.W.3 and deposed that on reaching the Panchayat Ghar, he saw that Surjit Singh, Malkiat Singh, Jaggar Singh, Karnail Singh, Mahindro Bai and Dalip Singh were breaking the wall of the building with Sabbals (Crowbars).
5. After the statement of Joginder Singh was recorded, the learned Assistant Public Prosecutor moved another application under Section 319 Criminal Procedure Code for summoning the petitioners. The Judicial Magistrate Ist Class, Fazilka after hearing arguments of counsel for the petitioners and the Assistant Public Prosecutor allowed the said application vide his order dated September 6, 1997 (Annexure P2) and ordered the summoning of Dalip Singh and Mahindro Bai petitioners, to face trial alongwith their co-accused, by observing the Joginder Singh P.W.3, who was an eye witness clearly stated that the petitioners had demolished the wall.
6. Aggrieved by the order of Judicial Magistrate Ist Class, Fazilka, Annexure P2, the present petitioners filed a revision petition. They took up the plea that the State having not filed any revision against order, Annexure P1, the same had attained finality and the principles of res judicata applied in the case. The learned Additional Sessions Judge, Ferozepur endorsed the findings recorded in Annexure P2 and dismissed the revision petition vide his order dated May 6, 1999 (Annexure P3).
7. The petitioners, being not satisfied with the order Annexure P3, have filed this petition before this Court.
8. I have heard learned counsel for the accused-petitioners and the learned counsel for the State assisted by Shri V.K. Chabbra, Advocate and carefully perused the record.
9. Order Annexure P1, was passed by the Judicial Magistrate Ist Class, Fazilka after going through the evidence of P.W.1 Harbans Lal wherein he clearly stated that Joginder Singh told him that the present petitioners Mahindro Bai and Dalip Singh had broken the wall; that he went to the house of the accused and sa
