Merit Of Evidence Has To Be Appreciated By Trial Court And Not By High Court In Revision Under Section 319 CrPC: SC
The Supreme Court has set aside an order of the Punjab and Haryana High Court which had allowed the revision petition of an accused declaring him innocent as during the investigation it could not be established that he used the gun during the commission of the offence, and had actually fled from the spot. The bench was of the opinion, that the trial court was absolutely correct to have summoned the accused based on the evidence of the prosecution witness, however, the High Court committed a grave error while making a totally un-called for presumption.
A bench of Justice C.T. Ravikumar and Justice Sudhanshu Dhulia thus observed, “The reasoning given by the High Court, cannot be accepted at the stage of consideration of application under Section 319 CrPC. The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319, though this is precisely what the High Court has done in the present case. Moreover, the High Court did not appreciate the important fact that the charges being faced by the accused were under Sections 458, 460, 323, 285, 302, 148 and 149 of IPC. Thus, one of the charges being Section 149, which is of being a member of an unlawful assembly, for attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly. Any specific individual role or act is not material”.
Advocate Ram Naresh Yadav appeared for the appellant/complainant, Deputy Advocate General Vishal Mahajan appeared for the State/Respondent No.1, and Advocate Shreeyash U. Lalit appeared for Respondent No.2.
In this case, the appellant before the Court was the informant in the case and was a prosecution witness (PW-9) in an FIR registered under Sections 458, 460, 2 323, 302, 148, 149 and 285 of IPC, 1860 read with Section 25 of Arms Act, 1959.
As per the allegations, fifteen assailants had broke open the complainant’s house to assault the inmates armed with lathis, gun and pistols. However, after the trial commenced and the complainant was being examined as PW-9, he disclosed the entire event as an eye witness in his examination-in-chief, where he had assigned the roles to three assailants as well, who were named in the FIR but not made accused in the chargesheet.
As per the statements made by PW-9, when the assailants finally left the house, they left after firing from their weapons.
Pursuant to which, an application was moved under Section 319 Code of Criminal Procedure, for summoning those three persons as accused so that they may also face the trial, which the Court allowed, but the order was set aside by the High Court in Revision.
The High Court had observed that “The matter can be looked from another angle. It is the case of the complainant that the petitioner armed with a gun had come to the place of occurrence along with other co-accused. However, it does not seem to the common prudence that a person coming with a premediated mind at the spot with a gun, would flee without even firing or attempt a shot. This clearly points towards a false implication of the petitioner”.
The Supreme Court then while referring to Sub-section (1) of Section 319 CrPC was of the opinion that it is the judicial discretion of the trail court to summon a person as an accused (who is so far not an accused in trial), if evidence has appeared before the Court.
“To our mind the Court had no alternative here but to summon the accused persons, considering that now it had an evidence before it in the form of the statement of PW-9… In our considered opinion the High Court has not appreciated the matter in the true perspective of Section 319 Cr.P.C”, the judgment read further.
Accordingly, while allowing the appeal, the bench set aside the order of the High Court dated March 2, 2022.
Cause Title: Sandeep Kumar v. The State Of Haryana & Anr.
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