TMI Blog2017 (11) TMI 1984X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.S. Rai, Sr. Advocate, Sarvshri Gautam Dutt and Abhinav Sood, Advocates For Respondents: Dhruv Dayal, Senior Deputy Advocate General JUDGMENT A.B. Chaudhari, J. 1. By these two revision petitions, the three petitioners; namely Sukhpal Singh Khaira, Joga Singh and Manish Kumar, have put to challenge the order dated 31.10.2017 in CRM No. 339 of 28.09.2017 in Sessions Case No. 289 of 16.09.2015, decided on 31.10.2017. Facts:- F.I.R. No. 35 dated 05.03.2015 under Sections 21/24/25/27/28/29/30 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Section 25-A of the Arms Act and Section 66 of the Information Technology Act, 2000, was lodged at Police Station Sadar, Jalalabad against eleven accused persons. On 09.03.2015, a Special Investigation Team was constituted, consisting of Deputy Inspector General of Police, Ferozepur, Senior Superintendent of Police, Fazilka and Superintendent of Police, Fazilka, which investigated the FIR and filed a challan on 06.09.2015 against nine persons, since remaining two persons were declared Proclaimed Offenders and finally one of them was never apprehended. Thus, the trial was held against 10 persons. Thereafter, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing the arguments, made its judgment on 31.10.2017 in Sessions Case No. 289 of 2015 and convicted all the ten accused and sentenced them. While recording the judgment of conviction, in paragraphs 5 (end of para) the trial Court observed that the application under Section 319, Code of Criminal Procedure, would be dealt with separately. Accordingly, on the same date i.e. 31.10.2017, on which date the judgment was pronounced, simultaneously, the said application under Section 319, Code of Criminal Procedure, was decided by the impugned order summoning five additional accused persons, including the present petitioners. Hence, these two revision petitions against the said order. Arguments:- 2. Sarvshri Mr. R.S. Rai and G.S. Punia, Senior Advocates, with Sarvshri Gautam Dutt, Abhinav Sood and P.S. Punia, Advocates, in both these petitions, made the following submissions:- i) The entire exercise made by the prosecution qua the present petitioners is out and out mala fide and with a view to cause damage to the reputation of petitioner-Sukhpal Singh Khaira, who is a sitting Member of Legislative Assembly and Leader of Opposition in the Punjab Assembly. Mr. Rai submitted that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned senior counsel, further contended that the provisions of Section 319, Code of Criminal Procedure, continue to apply till the conclusion of the main trial and not at the time when the judgment is delivered against the original accused persons. They submitted that the words in Section 319, Code of Criminal Procedure, are together with the accused persons , which means that the trial Court has no jurisdiction to summon additional accused persons, having pronounced the judgment dated 31.10.2017 and convicting the accused as the proposed additional accused could not be tried together with the original accused persons. In other words, according to them, the learned Judge became functus officio qua the application under Section 319, Code of Criminal Procedure, no sooner he recorded the judgment of conviction of the original accused persons on 31.10.2017 and, therefore, the impugned order is illegal. iv) They, then, submitted that the trial Court, while recording the reasons in support of the impugned order has relied fully on the evidence of the witnesses i.e. PW-4 Ajmer Singh, PW-5 Jaswant Singh and PW-13 Ravinder Pal Singh, which is wholly inadmissible in law and, as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for arrest of the additional accused persons, including the petitioners, when as a matter of fact, such a practice is condemned by the courts and that only summons could be issued to the accused persons in pursuance to the order made under Section 319, Code of Criminal Procedure. viii) Finally, they prayed for allowing the present petitions in their entirety. 3. Per contra, learned State counsel vehemently opposed these petitions. He submitted that decision in the case of Shashikant Singh (supra) and the other decisions rendered by the Rajasthan High Court as well as this Court and one more decision of the Apex Court in the case of Rajendra Singh v. State of U.P., 2007 (3) RCR. (Criminal) 1022 : (2007) 7 SCC 378 show that even after the conclusion of the trial, the power under Section 319, Code of Criminal Procedure, can be exercised and the additional accused can be summoned. He further submitted that in the present case, the trial Court had separated the application under Section 319, Code of Criminal Procedure, for the reasons beyond his control and ordered separate registration of the application as there was an order from this Court directing him to decide the trial itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to law but then for the purpose of Section 319, Code of Criminal Procedure, the power thereunder cannot be made nugatory. He pointed out the evidence of the witnesses, including the suggestions given by accused person Gurdev Chand, about the petitioners being in contact with the original accused persons who have been convicted. 6. As to the order asking the police to file supplementary charge-sheet, he submitted that there is nothing wrong in the present case on the part of the trial Court to direct filing of supplementary chargesheet as such right was reserved by the police themselves while filing the challan, which is clear from the perusal of the record. The trial Court having found a prima facie case against the petitioners, the said direction is in consonance with the liberty that was reserved by the police at the time of filing challan. Lastly, he submitted that the trial Court issued non bailable warrants looking to the seriousness of the offences and as it is seen that ten accused who have been convicted have been sentenced to undergo rigorous imprisonment for 20 years. He, then, emphasized that offences relate to drug trafficking, etc. from the neighbouring country P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed witnesses) and PW-13 Ravinder Pal Singh were examined and cross examined. 21.09.2017 The prosecution closed the evidence and the prosecution also filed an application under Section 319, Code of Criminal Procedure for summoning additional five accused, including these three petitioners. 28.09.2017 The trial Court made order directing separate registration of the application under Section 319, Code of Criminal Procedure filed on 21.09.2017. 04/10/17 The statements of ten accused under Section 313, Code of Criminal Procedure recorded. 10.10.2017/ 16.10.2017 Defence witnesses examined 31.10.2017 (i) Sessions Case No. 289 of 2015 decided and all ten accused convicted and sentenced to period ranging from 6 years to 20 years. (ii) In the judgment of conviction, in para-5 (end of para), the trial court stated that the application dated 21.09.2017, under Section 319, Code of Criminal Procedure, would be dealt with separately. On the same date, i.e. 31.10.2017, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. The next submission that was made was that it was only upon recall of the witnesses; namely, PW-4 Ajmer Singh and PW-5 Jaswant Singh, that they deliberately named the additional accused persons in their evidence. At this stage, unless they are cross-examined to that effect, it would not be possible to jump to such a conclusion. 11. The learned senior counsel for the petitioners, then, contended that the power under Section 319, Code of Criminal Procedure, can be exercised only till the conclusion of the main trial and not at the time when the judgment is delivered against the original accused in that trial. In the present case, the judgment of conviction was delivered on 31.10.2017 and simultaneously the order under Section 319, Code of Criminal Procedure, was also passed. They submitted that Section 319, Code of Criminal Procedure, contemplates summoning the accused persons only if they could be tried together with accused persons (original accused persons). Since the original accused persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 to 15 thereof, to buttress their point. In my opinion, the judgments relied upon by the respondent in the case of Shashikant Singh (supra) has the apt application in the present case and the following paragraphs from the said judgment clearly answer the argument advanced by the learned counsel for the petitioners. I quote paragraphs 5, 6, 8, 10 and 13, which read as under:- 5. During the pendency of the aforesaid revision petition, the learned Sessions Judge concluded the trial against Chandra Shekhar Singh and believing the ocular testimony, by judgment dated 16th July, 2001, Chandra Shekhar Singh was convicted for the offence under Section 302 Indian Penal Code and Section 27 of the Arms Act. In the revision petition, it was contended on behalf of respondent No. 1'that since the trial in respect of Chandra Shekhar Singh has already been concluded and no session trial is pending before the trial court, Section 319 would not be applicable as the said provision is applicable only when the trial against another accused is pending and in the absence of pendency of such a trial, the court is not competent to proceed against respondent No. 1. The High Court by the impugned ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 committed. (4) Where the Court proceeds against any person under sub-section (1), then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 8. The effect of the conclusion of the trial against the accused who was being proceeded with when the order was passed under Section 319(1) for proceeding against the newly added person, is to be examined in the light of sub-section (4) of Section 319 which stipulates a de novo trial in respect of the newly added persons and certain well settled principles of interpretation. 10. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse approach deserves to be adopted and preferred rather than a construction that would lead to absurd results of respondent No. i escaping the trial despite passing of all order against him on Court's satisfaction under Section 319(1) and despite the fact that the proceedings against him have to commence afresh. In this view, the fact that trial against Chandra Shekhar Singh has already concluded is of no consequence insofar as respondent No. 1 is concerned. 15. The decision in the case of Shashikant Singh (supra) was not cited before the Constitution Bench in the case of Hardeep Singh (supra). To my mind, the decision in the case of Shashikant Singh (supra) is directly on the point involved as against the decision in the case of Hardeep Singh (supra) and, therefore, in terms of the decision in the case of Shashikant Singh (supra), the submission will have to be repelled, which I hereby do. Even otherwise, paragraph-39 from Hardeep Singh's case (supra) would also throw the light and I quote the same, which reads, thus:- 39. To say that powers under Section 319 Cr.P.C. can be exercised only during trial would be reducing the impact of the word 'inquiry' by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show requirement of legal evidence before exercising the power under Section 319, Code of Criminal Procedure. I have carefully considered the submission made by the learned senior counsel for the petitioners with reference to the judgment in the case of Hardeep Singh (supra). But I quote paragraphs 70 and 71 from the said judgment, which read thus:- 70. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial. 71. It is, therefore, clear that 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. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation. 18. A reading of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such evidence as they deem fit, the trial being de novo. Therefore, 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. 20. Learned senior counsel for the petitioners then contended that in the Constitution Bench decision in the case of Hardeep Singh (supra), it has been held in paragraphs 98 and 99 thereof, that the power under Section 319, Code of Criminal Procedure cannot be exercised in a casual and cavalier manner and the requirement is the existence of stronger evidence more than a prima facie case. There can be no dispute about the said proposition laid down in the case of Hardeep Singh (supra). But then, I find that the evidence pointed out by the Public Prosecutor and the reasons given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling of Heroin then he can call PSO Joga Singh, PSO of Sukhpal Singh Khaira. Learned Addl. P.P. further argued that these facts were mentioned by Ajmer Singh, S.P. PW-4 in his case diary in the Zimni No. 5 dated 09.03.2015. Ajmer Singh S.P. further brought these facts to the notice of Sh. Swa-pan Sharma, the then S.S.P. Fazilka and SSP Fazilka further informed these facts to I.G. Bathinda Zone, who further constituted a SIT. The SIT consists of Sh. Amar Singh Chahal, DIG Ferozepur, Sh. Swapan Sharma, the then SSP, Fazilka and Sh. Amarjit Singh S.P.(D), Ferozepur. Learned Addl. P.P. further argued that PW-5 Inspector Jaswant Singh also deposed on the same lines as deposed by PW-4 S.P. Ajmer Singh. Learned Addl. P.P. further argued that the narcotic trade is a big challenge not only to the health and prosperity of citizens, but to the security of the nation also. As the things stand out, this FIR No. 35 was registered and Challan against 10 accused was presented by mentioning that after investigation the challan against the remaining accused will also be filed but till date no challan is presented against other accused whose names are mentioned in the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ementary charge-sheet. But then, there are peculiar facts in the present case. When the challan was filed before the trial Court by the Special Investigation Team, it was specifically stated as under regarding reserving its right to file supplementary charge-sheet:- In connection to absconding persons and suspected persons, investigation is going on. Permission under the Arms Act has been sought from worthy DM and is annexed with this Challan. Upon completion of investigation against absconding and suspected persons, supplementary challan report shall be submitted under Section 173(8) of Cr.P.C. 23. 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. As stated by me earlier, the direction to file supplementary charge-sheet will have to be read down in the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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