STATE OF PUNJAB Vs. WASSAN SINGH

JUDGEMENT

(1.) THE Sessions Judge. Gurdaspur on his own had referred for decision of this Court the Procedural question focused hereafter and when placed before one of us was ordered to be heard by a Division Bench in view of its importance.

(2.) THE broad facts arc these:one Ajit Singh was done to death in village Boparai on the night intervening 28/29-9-1981. The first information report was lodged by Charan Singh. a brother of the deceased. He claimed to be an eye-witness. He named therein Dar Singh, Karan Singh. Dewan Singh and an unknown Sikh person to be the culprits of the crime. This unknown Sikh person was subsequently identified as Wassan Singh. The police during investigation, found the date, time and place of occurrence given in the first information report as correct. However, the Investigator took the view that the first informant had not given the correct names of the culprit. According to him the crime was actually committed by the afore-referred to Wassan Singh and two others namely Gurnam Singh and Harjinder Singh. Accordingly, the Investigator filed a police report against Wassan Singh. Gurnam Sinah and Hariinder Singh (hereafter referred to as Wassan Singh and two others) The Committing Court framed charge against Wassan Singh and two others and committed them to stand their trial before the Court of Session. The Sessions Judge Gurdaspur. embarked upon the trial. On 19-4-1982. after the learned Sessions Judge had recorded the statement of the brother of the deceased, the author of the first information report, the Police Prosecutor moved an application for stopping the trial and summoning the persons whom the first informant had named as the culprits. The first informant in his aforesaid statement had named Wassan Singh. Dar Singh. Karam Singh and Dewan Singh (hereafter referred to as Wassan Singh and three left-overs) as the culprits. The learned Pessions Judge allowed the application and summoned the three left-overs for 26-4-1982. On their appearance on that date, the matter was adjourned for a couple of dates till 12th May. 1982. At that stage, he was confronted with the problem as to how to frame the charge against them. He was caught in the turmoil whether the accused in both the versions could be tried jointly within the scope of Section 223. Criminal P. C. or should there be two separate trials. Yet he was cognizant of the fact that Wassan Singh accused was common to both the sets of the accused and the evidence against them was not mutually exclusive: rather most of it was common. He had views expressed in Amar Sinah v. The State. AIR 1954 Puni 106 : 1954 Cri LJ 636 (DB ). Nga Sar Kee v. Theh King. AIR 1939 Rangoon 390 : 1940-41 Cri LJ 153 and Nga Mya Sein v. The King AIR 1937 Rangoon 512. to set him doubting. Those cases had apparently arisen in the context of Section 239. Criminal P. C. 1898 (now Section 223 ).

(3.) WE have examined the matter in considerable detail with the assistance of the learned Deputy Advocate General Puniab and the learned Counsel for the two sets of accused. At the outset, we must at the cost of repetition emphasise that Wassan Singh being common to both sets of accused and the evidence against each set being not mutually exclusive, the afore-referred to three precedents did not have any bearing on the point. In the Punjab case for the occurrence, there were two versions of the murder of one Piara Singh. According to one set of witnesses, the deceased had been murdered at a particular time and place by Amar Singh and others (six persons ). According to another set of witnesses, the deceased had been murdered by a seventh person (to the exclusion of six, persons ). The police in that situation first filed an incomplete challan against the seventh person. Then another challan against all the seven persons. And lastly a third challan as the complete challan. It is in that situation, the Court took the following view : Thus it was no Part of the duty of the Public Prosecutor to put both versions before the Court, and after all a trial Court is not to solve conundrums nor to determine as to who has committed the offence, but in all cases that function of the Criminal Court is to adjudicate between the State and the accused as to whether the accused in that particular case is guilty of the offence with which he is charged. In the present case, the prosecution were themselves not clear as to whether one set of accused had committed the offence or the other set and to try the two sets together is in my opinion, contrary to the provisions of the Code which has in Chapter XIX and Sections 233 to 240 laid down provisions for joinder of charges. The Rangoon cases are practically on the similar lines. All the same, in these cases, there were two or more than two prosecutions launched and it is in that context that the question of a joint trial arose. But here, in the instant case, as is patently clear, there is no such situation. The prosecution has out in one police report (challan) and that is against Wassan Singh and two others. There is one trial which commenced i. e. against Wassan Singh and two others. It is during the course of that trial, the learned Sessions Judge in exercise of powers under Section 319. Criminal P. C. summoned the three left-overs to stand trial together with the accused already before him. Section 319. Criminal P. C is specific in that regard. So the newly summoned accused have to be tried together with the accused already facing trial. There is no occasion for a Joint trial in that technical sense. All what is required by the Court is provided in Sub-section (4) of Section 319. Criminal P. C. which is to the following effect:where the Court proceeds against any person under Sub-section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard: (b) subicct to the provisions of Clause (a) the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.