The power to summon an additional accused under Section 319 Cr.P.C. should be exercised during the pendency of the trial, and the section cannot be pressed into service once the trial is over.

DEEPAK GUPTA , J.

This revision is directed against the order dated 10.07.2015 passed by the Court of learned Sessions Judge, Faridkot, dismissing the application under Section 319 Cr.P.C. to summon Parabhjinder Singh alias Shani as an additional accused, during the trial of the case arising out of FIR No.34 dated 23.04.2014, registered at Police Station Bajakhana, District Faridkot, under Sections 302, 307 and 34 of IPC and Section 27 of the Arms Act, 1959.

2. FIR was lodged on the complaint of Gurtej Singh (petitioner herein), as per which on 23.04.2014, he along with his brother Manpreet Singh were cultivating the land of their uncle Pargat Singh. Fields of Avtar Singh S/o Gurjant Singh employed as Punjab Police Hawaldar adjoins to their fields. Said Avtar Singh along with his sons Soni and Shani stopped their tractor, lifted their kurta and started cracking obscene jokes. Avtar Singh raised lalkara asking them to run away and then took out pistol from his dub, whereas his sons Soni armed with kulhari and Shani armed with sabbal ran towards them. It was alleged further by complainant Gurtej Singh that he and his brother tried to run, when Avtar Singh with the intention to kill them fired gun shots hitting Manpreet Singh. One shot also hit left thigh of complainant Gurtej Singh. Avtar Singh's son Soni gave axe blow on the back side of chest of the complainant; whereas Shani threw sabbal towards him which crossed over his head. Manpreet Singh died at the spot.

3. After registration of the FIR, investigation was carried out, during which Harjinder Singh alias Soni and Parabhjinder Singh alias Shani were found innocent and kept in column No.2 of the challan. Application was moved by complainant Gurtej Singh under Section 190 Cr.P.C. for arraigning Harjinder Singh alias Soni as an accused and take cognizance against him, which was allowed, whereas the application moved by the police to release said accused from custody, was dismissed. The case was committed to prosecute accused Avtar Singh and his son Harjinder Singh @ Soni.

4. During the trial, application was moved by the prosecution under Section 319 Cr.P.C. to summon Parabhjinder Singh @ Shani as an additional accused to face trial along with main accused Avtar Singh and Harjinder Singh @ Soni. That application has been dismissed by the learned Sessions Judge, Faridkot, vide order dated 10.07.2015 against which this revision is preferred.

5. It is contended by learned counsel for the petitioner that name of Parabhjinder Singh @ Shani was clearly disclosed in the FIR. Specific role was attributed to him. Inquiry report holding said Parabhjinder Singh @ Shani as innocent was rejected. Co-accused Harjinder Singh @ Soni had preferred revision, which was dismissed. The case was then committed to the Court of Sessions and during the trial, petitioner Gurtej Singh examined as PW1 categorically named Parabhjinder Singh @ Shani as one of the assailants and therefore, the impugned order is liable to be set aside.

6. Upon notice of motion issued to the respondents, appearance has been made on behalf of respondent No.2, who strongly opposed the petition. At the outset, learned counsel for respondent No.2 placed on record copy of the judgment dated 06.05.2019 passed by learned Sessions Judge, Faridkot, whereby Avtar Singh and Harjinder Singh @ Soni have since been convicted in Sessions Case No.35 of 2014. It is contended by learned counsel that as trial has since been concluded, therefore, Section 319 Cr.P.C. has no applicability. Reliance is placed upon the judgment of the Hon'ble Supreme Court of India in case of “Sukhpal Singh Khaira vs The State of Punjab”, reported as 2019(5) R.C.R. (Criminal) 864.

7. On the other hand, learned counsel for respondent No.2 has referred to the judgment of the Hon'ble Supreme Court in case of “Shashikant Singh vs Takeshwar Singh” reported as 2002(3) R.C.R. (Criminal) 191 to contend that a person summoned as an additional accused has to face a de-novo trial, w