AMARJIT SINGH ALIAS AMBA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE primary question that falls for determination in this case is as to whether a person named in the FIR as an accused and challaned by the police but discharged by the Magistrate under section 239, Cr.P.C. could be considered to be a person not being an accused and summoned by the very Court by virtue of the provisions of section 319 Cr.P.C. to be tried alongwith other accused.

(2.) FOR appreciating the somewhat significant law question posed above, it needs noticing only a few relevant facts which can be stated. Three persons namely Amarjit Singh alias Amba, the petitioner herein, Jaswinder Singh alias Chama and Balram Singh were challaned by the police under section 326 read with section 34, IPC. The trial Court after considering the relevant documents i. e. FIR., statements under section 161. Cr.P.C. etc., held that no case was made out against Amarjit Singh alias Amba and vide order dated 2-7-1981, discharged him. When the trial proceeded against the other two accused and one of the witnesses namely Santosh Kumari complainant in her examination in chief attributed a positive act of criminality to Amarjit Singh, the prosecution moved an application for summoning Amarjit Singh as an accused to face the trial alongwith other two accused. The Chief Judicial Magistrate vide his order dated 25-1-1982 dismissed the application. This order was challenged in revision petition before Session Judge Ropar, who by his order dated 14.6.1982 set aside the order dated 25.1.1982 and granted the application of the prosecution for summoning Amarjit Singh as an accused. It Is this order which has been Impugned by the petitioner through the present petition on two grounds inter alia , (1) that unless the order dated 2-7-1981, whereby the petitioner was discharged by trial Court is set aside the petitioner could not be summoned as an accused in the case; (ii) That mere examination-in-chief statement of Santosh Kumari cannot be considered, evidence which could be taken into consideration for deciding as to whether the person implicated is to be summoned or not.

(3.) IN the aforementioned case the facts were that the police out of persons named in the F.I.R. had challaned only three and the names of other two persons were mentioned in column No. 2 as being innocent. The trial Magistrate committed for trial only the three accused who had been challaned. Later on in view of the evidence adduced by the prosecution during the trial of the said accused, the Sessions Court summoned the two accused who had not been committed by the committing Court. One of the questions that arose in that case was as to whether provisions of Section 319. Cr.P.C. could be resorted to by the Sessions Court to summon the two accused. Point canvassed before their lordships was that any person who was an accused in the case stood excluded from its purview. It was stressed that a person named in the F.I.R. as an accused, even though released by the police under section 169, Cr.P.C. and shown in column No. 2 of the charge-sheet shall have to be considered an accused and thus did not fall within the purview of Section 319 Cr.P.C. Their Lordships repelled the contention with the following observations :-