JARNAIL SINGH AND ANR. v. STATE OF HARYANA AND ANR

Citation: [2003] 3 S.C.R. 460

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, H.K. SEMA

Judgment text

JARNAIL SINGH AND ANR. v. STATE OF HARYANA AND ANR. APRIL 9, 2003 [Y. K. SABHARWAL AND H. K. SEMA, JJ. ] Criminal Trial: Code ofCriminal Procedure, 1973; Section 319: Murder-Police case against complainant and accused-Complaint Case against some of the accused thereafter-Accused summoned by the Court of Sessions-Upheld by High Court-Discretionary power ofthe Court-Exercise of-Held: The prosecution was for the same offence-Court in exercise of its discretionary power could summon any person who appears to have committed an offence to achieve criminalji1stice-Hence summons ofaccused in exercise of discretionary power was proper and legal-Article 20(2) not violated- Constitution ofIndia, 1950; Article 20(2)-Penal Code, 1860-Sections 147, 148, 149, 302, 307 and 447. Words and Phrases: "any person not being accused"-Meaning of in the context ofSection 319 Cr. P. C. According to respondent No.

2-complainant, accused persons armed with weapons came and tried to stop his father from ploughing the field; quarreled and shot him dead. Police did not register a case against the accused but registered a false case against the complainant at the instance of accused. However, as per order of the Court, a case was registered against all the accused excluding two of them. On the second complaint the Magistrate directed summoning of these two accused as well and committed the case to the Court of Sessions. The Sessions Court had summoned these accused for trial and the order was upheld by the High Court. Hence the present special leave petitions. It was contended for the petitioner that since accused has been tried for the same offence though in different case, Section 319 Cr. P. C. is not JARNAIL SINGH v.

STATE OF HARYANA 461 applicable; that the trial Court did not exercise its discretionary power properly and legally by summoning the petitioners; and that the High Court did not take note of the police case against the petitioners. Dismissing the petitions, the Court HELD: I. I. High Court has noticed that since both the cases, viz. , the Police case and the complaint case were before the trial Court, these cases must necessarily be decided at the same time. Thus the High Court has taken note of the effect of the petitioners being accused in the Police case. (464-HJ 1. 2. Power under Section 319 Cr. P. C. can be resorted to only when a person is not an accused before the Court and in the course of any inquiry into, or trial of, an offence, it appears from the evidence that such person has committed any offence for which he can be tried together with the accused. The Court has discretion to proceed against such person for the offence which he appears to have committed. (465-AI 1. 3.

Section 319 Cr. P. C. does not exclude from its purview a person who is not an accused before Court in a case in which order for his summoning is passed despite the fact that such a person being an accused in another case though in respect of same occurrence but with different version. The words ''any person not being the accused" in Section 319 would cover any person who is not already before the Court in the case in which order under Section 319 Cr. P. C. is passed. It is the duty of the Court to bring before it any person who appears to have committed an offence and to convict and pass an appropriate order of sentence on proof of such person having committed the offence. (465-C-DI 1. 4. The principles laid down in *Hmjinder Singh v. State ofPunjab and Ors. are squarely applicable to the instant case as well. The High Court in principle and in substance has adopted a similar course in the impugned order. It would not result in causing any prejudice to the accused/ petitioners.

It is the duty of the Court to sift the grain from the chaff and punish the guilty while, at the same time, ensuring that there is no violation of Article 20(2) of the Constitution of India. 1468-G-H; 469-AI *Hmjinder Singh v. State ofPunjab and Ors. , (198511 SCC 422, relied on. [2003] 3 S. C. R. S. S. Khanna v. Chi sed despite the fact of such a person being an accused in another case though in respect of same occurrence but with different version. The words "any person not being the accused" in Section 319 would cover any person who is not already before the court in the case in which order under Section 319 is passed. It is the duty of the Court to bring before it any person who appears to have committed an offence and to convict and pass an appropriate order of sentence on proof of such person having committed the offence. Mr. Jaspal Singh contends that in law there can be one trial and in support, learned counsel relies upon S. S. Khanna v. ChiefSecretary, Patna and Anr.

(1983] 3 SCC 42 with particular reference to the observations contained in para 8 that there can be in law only one trial in respect of any offence. The aforesaid observations have been made in the context ofthe question involved in that case. The question involved in S. S. Khanna 's case was that when a Magistrate had declined to issue process against a person at the stage of an inquiry under Section 202 of the Code, can he later on summon him under Section 319 of the Code. While answering that question, observations were made in para 8 that in law there can only be one trial and that a trial can commence only after process is issued to the accused. The observations cannot be relied upon out of context. Para 8 wherein observations relied upon were made reads as under: "8. An inquiry under Section 202 of the Code is not in the nature of a trial for there can be in law only after process is issued to the accused.

The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an until it is decided to issue process against him. Even if he participates in the proceedings under Section 202 of the Code, he does so not as an accused but as a member of the public. The object of the inquiry under Section 202 is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a per~on cannot even be legally called to participate in the proceedings under Section 202 of the Code. The nature of these proceedings is fully discussed by this Court in two cases Vadilal Panchal v. Datta! raya Dulaji Ghadigaonker and Chandra Dea Singh v.

Prakash Chandra Bose in which Section 202 of the former Code of Criminal Procedure arose for consideration. The present Section '. :G2, the observations made by this Court on the nature of the proceedings under that section would have to be accepted as governing the proceedings under Section 202 of the Code. " In Harjinder Singh v. State ofPunjab and Ors. , (1985] I SCC 422 the question that came up for consideration before this Court was ~. s to what was the proper course to be adopted when in respect of the same incident, there were two cases--one on a Police challan and the other on a complaint where the prosecution versions in the Police challan case and the complaint case are· materially different, contradictory and mutually exclusive. The facts involved in Harjinder Singh 's case in brief were that an occurrence had taken place in which nine respondents, i. e.

, respondents 2 to I0 therein were alleged to have committed the murder of five persons belonging to the complainant's party. During the occurrence, the complainant Harjinder Singh also received gunshot injuries. The First Information Report was lodged by a Head Constable. After investigation, the Police put up a challan against Respondents 2, 3 and 4 Kamai! Singh, Mohinder Singh and Gurcharan Singh and they were committed to stand trial in the Court of Session at Barnala for having committed offences punishable under Sections 302, 307, 342 and 440, all read with Sections 149, 148 and 120-B of the Indian Penal Code, 1860 and Sections 25 and 27 of the Arms Act, 1959. The complainant Haijinder Singh, who was appellant before the Supreme Comt, after collecting material lodged complaint before the concerned Magistrate against respondents 2 to I0. In the meantime, •\ the learned Additional Sessions, Judge had fixed the case put up by the prosecution, i. e. State v.

Karnail Singh for recording of evidence. Apprehending that the complaint case filed by the appellant would not be committed until the trial before the learned Additional Sessions Judge concluded, the appellant moved the High Court under Section 482 of the Code with a prayer that the trial of respondents 2, 3 and 4 Kamai! Singh, Mohinder Singh and Gurcharan Singh be stayed till the complaint filed by him against them and six others was processed by the learned Magistrate and they were committed. On the order of the High Court, the commitment proceedings were expedited and ultimately the Magistrate committed all the nine accused to the Court of Additional Sessions Judge, Barnala. An application was filed by the appellant before the Sessions Court that as the prosecution version in the Police challan case and the complaint case was conflicting and the number of accused and the prosecution witnesses were also different, the trial of the two cases may not be held together.

While this application was pending, the respondents made an application that the Police challan case and the complaint case be consolidated and clubbed together. The said application was allowed by the learned Additional Sessions Judge who directed that the cases be clubbed with and consolidated and the evidence recorded in one case be read as the evidence recorded in the other case. This order was upheld by the High Court and revision petition filed by the appellant dismissed with the directions that (I) The complainant should in no event be prejudiced by the adoption of such a course and (2) The list of witnesses submitted along with the complaint would have to be exhausted by the Public Prosecutor and it should be vouchsafed that the complainant in that regard does not suffer, i. e. , in the matter of leading evidence in the complaint case.

As regards the apprehension of the complainant that the evidence meant to be led in the Police challan case and that meant to be led in the complaint case would be mutually exclusive and would necessarily lead to an acquittal of the accused on account of conflicting versions, the High Court observed that it need not be so as to the Court would have to shift the grain from the chaff, that being its bounde. n duty. While challenging the aforesaid order before this Court, it was, inter alia, contended for the appellant that the High Court was wrong in upholding the order of clubbing and consolidating two cases particularly when the prosecution versions in the Police challan case and the complaint case are materially different and the accused persons are also not the same. In these circumstances, the course to be adopted was laid by this Court in para 8 of the report which reads as under: "8.

In the facts and circumstances of this particular case we feel that the proper course in adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i. e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the oth~r. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence, of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case.

In Kewal Krishan case AIR (1980) SC 1780; 1980 Supp SCC 499; 1981 SCC (Cri) 438, this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Session, one instituted on a police report under Section 173 of the Code and the other initiated on a criminal complaint, arose out of the same transaction. The Court observed that to obviate the risk of two courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same court. The High Court was largely influenced in upholding the order of the learned Additional Sessions Judge 20(2) of the Constitution and Section 300 of the Code which provides that no person shall be prosecuted and punished for the same offence more than once. If there is no punishment for the offence as a result ofthe prosecution, sub-clause (2) of Article 20 has no application.

The constitutional right guaranteed by Article 20(2) against double jeopardy can still be reserved ifthe two cases are tried together but not consolidated i. e. the evidence be recorded separately in both cases and they be disposed of simultaneously. Further; the second prosecution must be for the 'same _offence'. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. It may be that the aforesaid was held to be the proper course to be adopted while dealing with Section 223 of the Code but the principle laid down are squarely applicable to the present case as well. The High Court in principle and in substance has adopted a similar course in the impugned ·order. The course adopted would not result in causing any prejudice to the accused/petitioners. It is a duty of the Court to gift the grain from the chaff and punish the guilty while, at the same time, ensuring that there is no violation of Article 20(2) of the Constitution of India.

The impugned order squarely satisfies all these requirements. True, the power of summoning under Section 319(I) is required to be sparingly used it being a discretionary power but on facts ofthe present case, it cannot be held that the discretionary power has not been properly and legally used. The power is to be exercised to achieve criminal justice. As already noticed, though occurrence is the same but there are two versionsone in the Police case and the other in the case in which the petitioners have been directed to be summoned. In case the petitioners are not before the Court as accused in the case in hand, the Court would not be in a position to convict and appropriately sentence them even if the version of the occurrence as given by Respondent No. 2 is accepted and held proved beyond reasonable doubt against the petitioners. We are of the view that there is no merit in points I and 2 as well.

In view of the above discussion, we find no substance in the petitions and the same are accordingly dismissed. S. K. S. Petitions dismissed.