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2017 (11) TMI 1984 - HC - Indian LawsSmuggling - Proclaimed Offenders - jurisdiction to summon additional accused persons - authenticity of the evidence in terms of Section 65-B of the Evidence Act - HELD THAT:- The petitioners are not the complainants in the present case who have been summoned but they are additional proposed accused - It would be appropriate to find out the ratio decidendi laid down in the decision in RAVINDER SINGH VERSUS STATE OF PUNJAB AND ANOTHER [2017 (3) TMI 1883 - PUNJAB AND HARYANA HIGH COURT]. The question framed clearly shows that what was considered by this Court was as to whether the complainant in the FIR case himself can be summoned as an accused, based on the deposition of defence witnesses before the trial Court as the proposed accused is required to be tried together with the accused already on trial - In the present case, the above said position on the basis of the aforesaid question is not relevant and, therefore, the said decision has no application in the present case. The petitioners are not the complainants in the present case who have been summoned but they are additional proposed accused. The next submission of the learned senior counsel for the petitioners is that the trial Court became functus officio on the date of judgment i.e. 31.10.2017 - HELD THAT:- The power under Section 319, Code of Criminal Procedure, can be exercised even after the judgment is concluded. In that case, the accused persons were acquitted by the trial Court and after four months of the conclusion of the trial, the trial Court exercised the power under Section 319, Code of Criminal Procedure, for summoning the additional accused - 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. The contention raised by the learned counsel for the petitioners, thus, stands disposed of. A look at the evidence of PW-4 Ajmer Singh, PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh, which has been relied upon by the trial Court, for exercising power under Section 319, Code of Criminal Procedure, shows that some part of the evidence is admissible while some part of the evidence is inadmissible. But then, as earlier stated, the same can be subject matter of objection in de novo trial - whether Exhibit DX and its documents, and the call records, filed along with the writ petition are admissible or not is a matter of proof before the trial Court and certainly the petitioners are entitled to object to the admissibility of the documents for want of legal proof in the de novo trial. To say that Exhibit DX or the certified copy of the writ petition could not be looked into by the trial Court would be to prohibit the prosecution from effectively participating in the de novo trial. That would not serve the interest of justice. The next submission made by the learned senior counsel for the petitioners is that the trial Court could not have directed filing of supplementary charge-sheet as the trial Court does not have such power, as held by the Apex Court in some decisions. There are no doubt that the law is trite that the Court does not have power to order filing of supplementary charge-sheet. But then, there are peculiar facts in the present case - It is a settled legal position that 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. The next submission made by the learned senior counsel for the petitioners that the trial Court should not have issued non-bailable warrants against the accused, must be upheld - HELD THAT:- It is a well settled legal position that such a course of action should not be pressed into service. The trial Court has not recorded a single reason as to why instead of issuing summons, straightway warrants have been issued. The trial Court has overdone it. The trial Court was not at all justified in doing so. Hence, the said part of the order issuing non-bailable warrants for securing the presence of the petitioners, must be set aside. The impugned order under Section 319, Code of Criminal Procedure, will have to be upheld - revision dismissed.
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