GURDEEP SINGH Vs. STATE OF PUNJAB AND ANOTHER

JUDGEMENT

(1.) Gurdeep Singh has filed this petition under Section 482 of the Code of Criminal Procedure (in short, Cr. P.C.), for quashing FIR No.42 dated 06.05.2003 (Annexure P-1) under Sections 353, 332, 341, 186 IPC registered at Police Station Samrala, along with all consequential proceedings and order dated 04.05.2004 Annexure P-4 passed by learned Sub-Divisional Judicial Magistrate, Samrala thereby summoning the petitioner as additional accused in exercise of power under Section 319 Cr.P.C.

(2.) Learned counsel for the petitioner vehemently contended that power under Section 319 Cr. P. C. to summon additional accused can be exercised only after framing of charge and recording of some evidence during trial as held by Hon'ble Supreme Court in the case of Sarabjit Singh & another versus State of Punjab and another,2009 3 RecCriR 388, but in the instant case, learned Magistrate passed impugned order Annexure P-4 on the basis of statements recorded under Section 161 Cr. P.C. during investigation and without recording any evidence in the Court during trial and, therefore, impugned order summoning the petitioner as additional accused is completely unsustainable.

(3.) Perusal of the impugned order Annexure P-4 reveals that learned Magistrate exercised power under Section 319 Cr. P.C. to summon the petitioner as additional accused. For this purpose, learned Magistrate relied on statements of witnesses recorded under Section 161 Cr. P.C. during investigation. No evidence was recorded by the trial Magistrate on the basis of which the petitioner could be summoned as additional accused under Section 319 Cr. P.C. It is evident from the judgment of Hon'ble Supreme Court in the case of Sarabjit Singh (supra) that power to summon a person as additional accused under Section 319 Cr. P.C. can be exercised only on the basis of fresh evidence brought before the Court and not on the basis of material collected during investigation. It was held that the word 'evidence' used in Section 319 Cr. P. C. contemplates evidence of witness in the Court. In the instant case, however, it is manifest from the impugned order Annexure P-4 that petitioner has been summoned as additional accused only on the basis of statements recorded under Section 161 Cr. P.C. during investigation and not on the basis of any evidence recorded by the Court. Consequently, impugned order Annexure P-4 is completely perverse and illegal and, therefore, unsustainable. However, there is no ground to quash the impugned FIR.