C482/2321/2019 of SANDEEP PANWAR Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Misc. Appl. (C482) No. 2321 of 2019

Sandeep Panwar

…….….…. Applicant

Versus

The State of Uttarakhand & anr.

…… Respondent

Mr. Ravi Joshi, learned counsel for the applicant. Mr. Subhash Tyagi Bhardwaj, learned Dy. Advocate General for the State.

Hon’ble R.C. Khulbe, J.

By means of present application, filed under Section 482 Cr.P.C., the applicant has sought quashing of the entire proceedings of Special Sessions Trial No. 2 of 2018, State vs. Kushal Singh, under Sections 4/5 of the Explosive Substance Act, pending before the Special Sessions Judge (Explosive Substance Act) Rudraprayag.

2. Heard.

3. As per the record, respondent no. 2 submitted an information before P.S. Ukhimath on 25.07.2012; on the basis of said information, FIR No. 39 of 2012 was registered; after completion of the investigation, charge sheet was submitted against Kushal Singh; accordingly, cognizance was taken; during trial, an application was moved by the DGC under Section 319 Cr.P.C., for summoning the other accused Kamal Singh Panwar and Dalver Singh Panwar but the trial court not only summoned Kamal Singh Panwar and Dalver Singh Panwar but also summoned the present applicant to face the trial; aggrieved it, the present applicant filed the present application for quashing of the entire proceedings.

4. It is argued by the learned counsel for the applicant that the matter relates to the year 2010 while FIR was lodged in the year 2012; initially, father of the applicant, namely, Soban Singh Panwar was one of the partner of Panwar Stone Crusher with Kamal Singh Panwar and Dalver Singh Panwar; the applicant was not the partner in the aforesaid stone crusher, accordingly, no offence is made out against him; at that point of time, he has no concern with the business, he was not the partner even he was not present at the spot; the concerned court simply summoned the present applicant on the basis of the partnership deed dated 17.08.2011; accordingly, the entire proceedings are liable to be quashed against the applicant.

5. Learned counsel for the State fairly submitted that at the time of the incident, the applicant was not the partner of the stone crusher; he is not named in the FIR; admittedly he was summoned on the basis of the application dated 12.09.2019 submitted by the DGC.

6. From the perusal of the FIR, it would reveal that the applicant is not named in the FIR; the FIR was lodged against Panwar Stone Crusher ; the occurrence occurred on 06.07.2010 while the FIR was lodged on 25.07.2012; admittedly, present applicant was not the partner with Kamal Singh Panwar and Dalver Singh Panwar at that point of time; as per the document, father of the applicant Soban Singh Panwar was one of the partner in the aforesaid stone crusher with Kamal Singh Panwar and Dalver Singh Panwar; the father of the applicant passed away on 14.08.2011; death certificate is on record; as per the partnership deed dated 17.08.2011, the name of the applicant was entered ; the incident was occurred on

06.04.2010, at that point of time the applicant was neither the partner nor posted as employee in the stone crusher, accordingly, he cannot be summoned under Section 319 Cr.P.C.; apart from that, the trial court did not record the statement of any witness; person cannot be summoned by invoking the provision of Section 319 Cr.P.C. simply on the basis of the statement recorded under Section 161 Cr.P.C.

7. Constitution Bench of the Hon’ble SupremeCourt in the case of Hardeep Singh v. State of Punjaband others reported in (2014) 3 SCC 92, whileconsidering the scope of Section 319 Cr.P.C., has held asunder:

“54. In our opinion, the stage of inquiry does notcontemplate any evidence in its strict legal sense, norcould the legislature have contemplated this inasmuchas the stage for evidence has not yet arrived. The onlymaterial that the court has before it is the materialcollected by the prosecution and the court at this stageprima facie can apply its mind to find out as to whethera person, who can be an accused, has been erroneouslyomitted from being arraigned or has been deliberatelyexcluded by the prosecuting agencies. This is all themore necessary in order to ensure that the investigatingand the prosecuting agencies have acted fairly inbringing before the court those persons who deserve tobe tried and to prevent any person from beingdeliberately shielded when they ought to have beentried. This is necessary to usher faith in the judicialsystem whereby the court should be empowered toexercise such powers even at the stage of inquiry and itis for this reason notcontemplate any evidence in its strict legal sense, norcould the legislature have contemplated this inasmuchas the stage for evidence has not yet arrived. The onlymaterial that the court has before it is the materialcollected by the prosecution and the court at this stageprima facie can apply its mind to find out as to whethera person, who can be an accused, has been erroneouslyomitted from being arraigned or has been deliberatelyexcluded by the prosecuting agencies. This is all themore necessary in order to ensure that the investigatingand the prosecuting agencies have acted fairly inbringing before the court those persons who deserve tobe tried and to prevent any person from beingdeliberately shielded when they ought to have beentried. This is necessary to usher faith in the judicialsystem whereby the court should be empowered toexercise such powers even at the stage of inquiry and itis for this reason

that the legislature has consciouslyused separate terms, namely, inquiry or trial in Section319 CrPC.55.Accordingly, we hold that the court can exercise thepower under Section 319 CrPC only after the trialproceeds and commences with the recording of theevidence and also in exceptional circumstances asexplained hereinabove.

There is yet another set of provisions

56.There is yet another set of provisions which formpart of inquiry relevant for the purposes of Section 319CrPC i.e. provisions of Sections 200, 201, 202, etc. CrPCapplicable in the case of complaint cases. As has beendiscussed herein, evidence means evidence adducedbefore the court. Complaint case is distinct category ofcriminal trial where some sort of evidence in the strictlegal sense of Section 3 of the Evidence Act 1872(hereinafter referred to as “the Evidence Act”) comesbefore the court. There does not seem to be anyrestriction in the provisions of Section 319 CrPC so as topreclude such evidence as coming before the court incomplaint cases even before charges have been framedor the process has been issued. But at that stage asthere is no accused before the court, such evidence canbe used only to corroborate the evidence recordedduring the trial (sic or) for the purpose of Section 319CrPC, if so required. What is essential for the purpose ofthe section is that there should appear some evidenceagainst person not proceeded against and the stage ofthe proceedings is irrelevant. Where the complainant iscircumspect in proceeding against several persons, butthe court is of the opinion that there appears to be someevidence

pointing to the complicity of some otherpersons as well, Section 319 CrPC acts as anempowering provision enabling the court/Magistrate toinitiate proceedings against such other persons. Thepurpose of Section 319 CrPC is to do complete justiceand to ensure that persons who ought to have beentried as well are also tried. Therefore, there does notappear to be any difficulty in invoking powers of Section319 CrPC at the stage of trial in complaint case whenthe evidence of the complainant as well as hiswitnesses are being recorded.

58.To answer the questions and to resolve theimpediment that is being faced by the trial courts inexercising of powers under Section 319 CrPC, the issuehas to be investigated by examining the circumstanceswhich give rise to situation for the court to invoke suchpowers. The circumstances that lead to such inferencebeing drawn up by the court for summoning personarise out of the availability of the facts and materialthat come up before the court and are made the basisfor summoning such person as an accomplice to theoffence alleged to have been committed. The materialshould disclose the complicity of the person in thecommission of the offence which has to be the materialthat appears from the evidence during the course of anyinquiry into or trial of offence. The words as used inSection 319 CrPC indicate that the material has to be“where … it appears from the evidence” before thecourt.

59.Before we answer this issue, let us examine themeaning of the word “evidence”. According to Section 3of the Evidence Act,

“evidence” means and includes:

“(1) all statements which the court permits orrequires to be made before it by witnesses, in relationto matters of fact under inquiry; such statements arecalled oral evidence;

(2) all documents including electronic recordsproduced for the inspection of the court; suchdocuments are called documentary evidence.”

78. It is, therefore, clear that the word “evidence” inSection 319 CrPC means only such evidence as is madebefore the court, in relation to statements, and asproduced before the court, in relation to documents. It isonly such evidence that can be taken into account by the Magistrate or the court to decide whether the powerunder Section 319 CrPC is to be exercised and not onthe basis of material collected during the investigation.

85. In view of the discussion made and the conclusiondrawn hereinabove, the answer to the aforesaidquestion posed is that apart from evidence recordedduring trial, any material that has been received by thecourt after cognizance is taken and before the trialcommences, can be utilised only for corroboration and tosupport the evidence recorded by the court to invoke thepower under Section 319 CrPC. The “evidence” is thus,limited to the evidence recorded during trial.”

8. From the law laid down by Hon’ble Apex Courtin Hardeep Singh’s case (supra), it emerges that- (i) theCourt can exercise power under Section 319 Cr.P.C.

evenon the basis of the statement made in examination-in-chief of witnesses concerned; and (ii) Court need not waittill the cross examination of such witness and theCourt need not wait for the evidence against accusedproposed to be summoned to be tested by crossexamination and to person not named in the FIR or aperson so named in the FIR, but, to have not beencharge-sheeted or person who has been discharged canbe summoned under Section 319 Cr.P.C., provided fromthe evidence it appears that such person can be triedalong with accused already facing trial.

9. In S. Mohammed Ispahani v. Yogendra Chandak and others reported in (2017) 16 SCC 226, the Hon’ble Supreme Court has held in paragraph no.35 asunder: -

“35. It needs to be highlighted that when person isnamed in the FIR by the complainant, but police,after investigation, finds no role of that particularperson and files the charge-sheet without implicatinghim, the Court is not powerless, and at the stage ofsummoning, if the trial court finds that particularperson should be summoned as accused, eventhough not named in the charge-sheet, it can do so.At that stage, chance is given to the complainant alsoto file protest petition urging upon the trial court tosummon other persons as well who were named inthe FIR but not implicated in the charge-sheet. Oncethat stage has gone, the Court is still not powerlessby virtue of Section 319 CrPC. However, this sectiongets triggered

when during the trial some evidencesurfaces against the proposed accused.”

10. Similarly, in the case of Rajesh and others v.State of Haryana reported in (2019)6 SCC 368, the ApexCourt has held that even in case where protestpetition stage has gone, in that case also, the Court isnot powerless vide Section 319 Cr.P.C., and personsnamed in the FIR but not implicated in charge-sheetcan be summoned to face trial, provided during the trialsome evidence surfaces against proposed accused.

11. In recent judgment in the case of ‘SartajSingh v. State of Haryana and another’ reported in(2021) 5 SCC 337, the Apex Court has discussed indetail the object and purpose of Section 319 Cr.P.C.; thescope and ambit of powers of Magistrate; as to when theadditional accused may be added.

12. The same Bench of the Hon’ble Apex Court,of-late, in Manjeet Singh v. State of Haryana and others(Criminal Appeal No.875 of 2021 decided on24.08.2021, relying upon the aforementionedjudgments, has held that: -

“At the stage of exercising the powers underSection 319 of the Cr.P.C., the Court is notrequired to appreciate and/or enter on the meritsof the allegations of the case. The powers underSection 319 Cr.P.C. can be exercised at any stagefrom commencing of the trial and recording ofevidence/ deposition and before the conclusion ofthe trial at any stage.”

13. Admittedly, in the present matter no such procedure was followed by the trial court. Apart from that, there is no evidence on record against the applicant to face the trial.

14 In view of the above, the instant petition deserves to be allowed, and accordingly allowed. In consequence, entire proceedings of Special Sessions Trial No. 2 of 2018, State vs. Kushal Singh, under Sections 4/5 of the Explosive Substance Act, pending before the Special Sessions Judge (Explosive Substance Act) Rudraprayag is hereby quashed qua the applicant.

15. Pending application, if any, also stands disposed of.

Parul

(R.C. Khulbe, J.) 09.09.2021