Confirming Trial Court’s order of summoning accused, P&H HC reiterates that accused named in FIR but not charge-sheeted can be summoned u/s 319 CrPC based on statement of witness in examination-in-chief

Read Order: Neeraj Kumar @ Rocky and Another v. State of Haryana and another

Monika Rahar

Chandigarh, February 9, 2022: The Punjab and Haryana High Court has reiterated that a person who is named in the FIR but against whom charge-sheet has not been presented, can be summoned by the Trial Court under Section 319 Cr.P.C. on the basis of a statement made by a witness in his/ her examination-in-chief, if after the recording of the statement it appears to the Trial Court that such person is required to face trial along with his co-accused who are already being tried.

The Bench of Justice Deepak Sibal, while referring to the decision of the Supreme Court in Sartaj Singh v. State of Haryana & Anr. Etc., 2021 (5) SCC 337 opined, “As per the afore quoted observations of the Supreme Court, the Trial Court can exercise powers under Sections 319 Cr.P.C. even on the basis of a statement made by a witness in his/ her examination-in-chief and that a person not named in the FIR or a person though named in the FIR but who has not been charge-sheeted or even a person who has been discharged can be summoned by the Trial Court under Section 319 Cr.P.C. on the basis of evidence which may be in the form of a statement made by a witness in his/her examination-in-chief if after recording of such statement it appears to the Trial Court that such person is required to face trial alongwith his co-accused who are already being tried.” 

Through the instant petition, a challenge was made to the order of the Additional Sessions Judge, Panipat (Trial Court) whereby the complainant’s application under Section 319 Cr.P.C. for summoning the petitioners was allowed.

On a fateful day, when the complainant reached near Shyam Baba temple, he saw the petitioner and five of his co-accused, armed with pistols/revolvers etc. Out of fear the complainant hid himself and saw three accused persons going inside the temple whereas the petitioner and two others kept standing outside. Thereafter, the temple Pujari and his nephew Sompal reached there and had a heated exchange with all the accused as a result whereof the nephew was shot dead by Rishi and Pardeep (co-accused). 

An FIR under Sections 148, 149, 302, 506, 216, 120-B IPC and Sections 25, 54 and 59 of the Arms Act, 1959 was lodged. The petitioner and co-accused Neeraj Kumar @ Rocky (since deceased) were declared innocent. However, the complainant while appearing before the Trial Court again specifically named the petitioner and Rocky to be part of the unlawful assembly that caused Sompal’s murder. He further stated that his stand qua involvement of the petitioner and his co-accused in the murder of Sompal was fortified after seeing the CCTV footage of the incident. 

The complainant filed an application under Section 319 Cr.P.C. , for summoning the petitioner to face trial along with his co-accused which, through the order under challenge, was allowed by the Trial Court on the ground of the complainant’s consistent stand qua the involvement of the petitioner and the lack of citing of reasons on part of Police officials for declaring the petitioner to be innocent. 

The petitioner’s counsel submitted that in the year 2005 one of the relatives of the complainant was murdered by several persons including co-accused Rishi and because the petitioner was purportedly close to Rishi, the complainant named him to be one of the persons who caused Sompal’s murder.

It was further contended that earlier the complainant named Sandeep to be one of the accused but later he changed his stand and stated that it was Dayanand who was present along with the other co-accused, thus showing inconsistency in his stand. It was also his case that after investigation the police found the petitioner to be innocent and that simply on the basis of the complainant’s statement made by him in his examination-in-chief, the petitioner could not have been summoned to face trial.

The Court observed at the outset, after considering the facts of the case and the submissions advanced, that the complainant was thoroughly consistent with regard to the petitioner’s involvement in Sompal’s murder be it in form of his complainant leading to the FIR or his testimony before the Trial Court. 

Addressing the petitioner’s stand on inconsistency in the complainant’s statement qua involvement of Sandeep, the Court opined that the same would not further the petitioner’s case as qua the petitioner the complainant’s stand was consistent throughout. So far as the argument of counsel for the petitioner that the petitioner was found innocent by the police was concerned, the Court rejected the same as no worthwhile reasons for arriving at such a conclusion on part of the Police was found in the charge-sheet.

Thus, in the light of the above discussion as also the law laid down by the Supreme Court in Sartaj Singh’s Case (Supra), no error of jurisdiction, law or fact was found in the impugned order. The petition was dismissed.