2017 Supreme(P&H) 1582

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
A.B. CHAUDHARI, J.
Sukhpal Singh Khaira – Petitioner
VERSUS
State of Punjab – Respondent
Criminal Revision No. 4070 & 4113 of 2017 (O&M)
Decided On : 17-11-2017

Summoning as additional accused-Power under S.319 Cr.P.C can be exercised even after the judgment against other accused is concluded.
Summoning as additional accused-Non-cropping up of name of petitioner at the time of filing registration of FIR till closure of evidence of prosecution; is not a ground for not summoning petitioners as additional accused.

Headnote:(A) Criminal Procedure Code, 1973, S.319--Summoning as additional accused--Drug smuggling across border--FIR was registered against 11 persons--Petitioner was not named in FIR--After the closure of prosecution evidence official witness were recalled and call details connecting petitioners and original accused person were submitted--At the time of conclusion of trial application u/s 319 Cr.P.C was filed along with supplementary challan--Application held to be rightly allowed on following grounds:-

       (i) At the time FIR, petitioner had filed writ for transferring the investigation to CBI but was later withdrawn--Therefore, plea of malice held to be non tenable

       (ii) Application u/s 319 CrPC can be filed even after conclusion of original trial

       (iii) Reliability on phone call details between convicted persons and petitioner through his PSO and PA is to be decided during trial

       (iv) Allegations that one of the accused used to contribute money in elections of petitioner and he also provided his vehicle for campaigning are prima facie sufficient to issue summons to petitioner--Narcotic Drugs and Psychotropic Substances Act, 1985, S. 21.

       (B) Criminal Procedure Code, 1973, S.319--Summoning as additional accused--Non-cropping up of name of petitioner at the time of filing registration of FIR till filing of challan, supplementary challan and closure of evidence of prosecution; is not a ground for not summoning petitioners as additional accused. (Para 11)

       At any rate, the power is to be exercised if the trial Court finds sufficient evidence to proceed against additional accused persons. Therefore, it is no gainsaying that since the closure of trial at the first instance, their names did not crop up, therefore, the additional accused could not be summoned even if after recall of the witnesses there is evidence on record.

       (C) Criminal Procedure Code, 1973, S.319--Summoning as additional accused--Power under S.319 Cr.P.C can be exercised even after the judgment against other accused is concluded--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. (Para 18)

       The words ’could be tried together with the accused’ in Section 319(1), appear to be only directory. ’Could be’ cannot under these circumstances be held to be ’must be’. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court.

       (D) Criminal Procedure Code, 1973, S.319--Summoning as additional accused--Denovo Trial--There has to be a de novo trial against him--The provision of de novo trial is mandatory--It vitally affects the rights of a person so brought before the Court.--It would not be sufficient to only tender the witnesses for the cross examination of such a person--They have to be examined afresh--Fresh examination-in-chief and not only their presentation for the purpose of the cross examination of the newly added accused is the mandate of Section 319(4). (Para 16)

       (E) Criminal Procedure Code, 1973, S.319 & S.173--Summoning as additional accused--Supplementary Challan--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. (Para 25)

       (F) Criminal Procedure Code, 1973, S.319--Summoning as additional accused--Phone Calls--The details of calls between the additional accused persons and the convicted accused persons are a matter which cannot be taken lightly. (Para 22)

       (G) Criminal Procedure Code, 1973, S.319--Summoning as additional accused--Nature of evidence--The word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents--Whether evidence is relevant, irrelevant, admissible or inadmissible are matters to be seen at the trial and in this case in the retrial/denovo trial due to the order passed under Section 319, Code of Criminal Procedure. (Para 19)

       (H) Criminal Procedure Code, 1973, S.319--Summoning as additional accused--Nature of evidence--There is a full opportunity to the additional accused persons to object to the evidence as relevant or irrelevant and admissible or inadmissible. At the same time, the prosecution cannot be forbidden from bringing to the Court such other evidence against the additional accused persons which can be proved as legally admissible evidence as a denovo trial is required to be held in the light of Sub-section (4) of Section 319, Code of Criminal Procedure. The provisions of Section 319, Code of Criminal Procedure, therefore, cannot be interpreted to impede the production of whatever evidence by the denovo trial against the additional accused persons. (Para 20)

       (I) Interpretation of Statutes--Intention of Parliament--It has to be respected despite the consequences of interpretation--There is, however, a scope for two possible constructions--A reasonable and common sense approach deserves to be adopted and preferred rather than a construction that would lead to absurd results. (Para 16)

       (J) Malice--Proof of--Adequate pleadings and proofs qua the party against whom mala fides are alleged is sine qua non for consideration of the question of malice in fact. (Para 10)