Mehinder Singh Sullar, J. (Oral)

Tersely, the facts & material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, are that, initially, in the wake of complaint of petitioner-complainant Tarsem Singh son of Amrik Singh (for brevity “the complainant”), a criminal case was registered against accused Salinder Singh @ Shinda, Milkha Singh sons of Gurbachan Singh, Harpal Singh (juvenile) son of Shalender Singh, Baljit Singh (respondent No. 2) and Bachittar Singh (respondent No. 3) sons of Milkha Singh, by virtue of FIR No. 30 dated 8.2.2010 for the commission of offences punishable under sections 302 & 307 read with section 34 IPC and sections 25 & 27 of the Arms Act by the police of Police Station Lopoke, District Amritsar.

2. During the course of investigation of the case, accused Baljit Singh and Bachittar Singh (respondent Nos. 2 and 3) were found innocent. However, after completion of the investigation, the police submitted the final police report (challan) against the remaining three accused, namely Salinder Singh, Milkha Singh, Harpal Singh. They were accordingly charge sheeted for the commission of indicated offences and the case was slated for evidence of the prosecution.

3. The prosecution, in order to substantiate the charges against the accused, examined complainant Tarsem Singh as PW1, who has, inter-alia, stated that respondent Nos. 2 and 3 were armed with Dangs and have participated in the commission of the crime. Thereafter, the complainant moved an application u/s 319 Cr.PC to summon Baljit Singh & Bachittar Singh respondents No. 2 & 3 as additional accused to face the trial along with their already charge sheeted main accused.

4. The trial Judge dismissed the application u/s 319 Cr.PC of complainant, by way of impugned order dated 6.4.2011 (Annexure P1).

5. The petitioner-complainant did not feel satisfied and preferred the present revision petition to challenge the impugned order (Annexure P1), invoking the provisions of section 401 Cr.PC

6. At the very outset, it is not a matter of dispute that the trial Judge has already concluded the trial, convicted and sentenced the main accused Milkha Singh and Salinder Singh to undergo imprisonment for life and other punishment described therein under sections 302, 307 read with section 34 IPC & sections 25 & 27 of the Arms Act, vide judgment of conviction and order of sentence dated 16.8.2012

7. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant revision petition in this context.

8. Ex facie, the argument of learned counsel that since the trial Judge has committed a legal mistake in dismissing the application u/s 319 Cr.PC of the complainant, so, the impugned order (Annexure P1) is liable to be set aside, is not only devoid of merit but misplaced as well.

9. As indicated here-in-above, the trial Judge has dismissed the application u/s 319 Cr.PC, by means of impugned order (Annexure P1), which, in substance, is as under (Para 5):-

“The role attributed to Baljit Singh and Bachittar Singh is of raising lalkara (exhortation) only. Although, it is alleged that they were armed with dangs at that time, but then dangs were not used in the incident and no injury with dang is attributed to any one of them or found by the doctor during medical examination of the injured and performing post mortem examination of deceased Sucha Singh. During investigation, the investigating agency had not found sufficient cogent and convincing evidence against Baljit Singh and Bachitar Singh so as to sent them to face trial alongwith Milkha Singh and Salinder Singh. Rather Gurnam Singh, DSP, vide his zimini had found these two persons to be innocent. Inter alia in the zimini he has observed that Baljit Singh and Bachittar Singh were present in the party organized in connection with marriage of Kulwinder Singh son of Sawarn Singh, resident of village Dhattal and they had stayed for night there, thus, finding that they were not present at the spot at the time of incident. Tarsem Singh had made statement in the court almost on the similar lines of his statement made to the police and the role attributed by him to these two persons namely Baljit Singh and Bachittar Singh was not found to be correct. Now law is well settled that additional accused are not to be summoned to face trial on an application under section 319 Cr.PC unless there is enough and sufficient evidence available on the record which can form basis for their conviction. Discretion under section 319 Cr.PC is not to be exercised in a light and casual manner. In this case, after registration of the FIR on the basis of statement of complainant Tarsem Singh, the matter had been investigated by the police and the police had not challaned Baljit Singh and Bachittar Singh, rather, their names were placed in column No. 2 of the report under section 173 Cr.PC Now Tarsem Singh has made a similar statement in the court. In absence of any other evidence and corroborative material available on the record, I do not find it appropriate and in the fitness of things to summon Baljit Singh and Bachittar Singh to face trial along with Milkha Singh and Salinder Singh. Therefore, finding no merit in the application, the same stands dismissed.”

10. In this manner, the trial Judge, after taking into consideration the fact that only lalkara was attributed to respondent Nos. 2 and 3, they were allegedly armed with dangs, which were not used in the incident and no injury with dangs was attributed to them and totality of other pointed facts & circumstances, has examined the matter in the right perspective and correctly did not summon the private respondents as additional accused to face the trial along with their other co-accused. The learned counsel for petitioner-complainant did not point out any reason, muchless cogent, to interfere in the impugned order, particularly after the conclusion of main trial in this respect.

11. Not only that, there is another aspect of the matter, which can be viewed from entirely a different angle. As indicated here-in-above, the trial Judge, having completed all the codal formalities, has already concluded the trial and convicted & sentenced the main accused Milkha Singh and Salinder Singh to undergo imprisonment for life and other punishment under sections 302, 307 read with section 34 IPC & sections 25 & 27 of the Arms Act as depicted therein, vide judgment of conviction and order of sentence dated 16.8.2012 In this manner, main case already stands concluded.

12. Sequelly, the contention of learned counsel for private respondents that since the main trial has already been concluded and cause of action u/s 319 Cr.PC does not survive, so, the matter becomes infructuous, has considerable force. On the contrary, the submission of learned counsel for complainant that the conclusion of main trial has got no bearing on the decision of the present revision petition is neither tenable nor the observations of this Court in case Amar Singh v. State of Haryana2003 Crl. L.J 2003 are at all applicable to the facts of the instant case, wherein, the additional accused were already summoned in the wake of application u/s 319 Cr.PC filed by co-accused Roshan Lal Chawla, much prior to the conclusion of the trial therein. The revisional Court accepted the revision petition only on a hyper-technical ground that the co-accused is not competent to move such application. However, it was held that the trial Court may summon them (additional accused) at the instance of prosecution/complainant. Thereafter, the complainant filed another application u/s 319 Cr.PC, additional accused were summoned to face the trial and they were accordingly charge sheeted. On the peculiar facts & in the special circumstances of that case, it was observed that the fact that trial of co-accused had concluded, cannot have the effect of nullifying the order of summoning of the additional accused u/s 319 Cr.PC There can hardly be any dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of petitioner-complainant in the present controversy.

13. As is evident from the record that in the instant case, the application filed by the complainant u/s 319 Cr.PC was dismissed by the trial Judge, vide impugned order (Annexure P1). That means, no order to summon the private respondents as additional accused was ever passed by the Court before conclusion of the trial of main case. Once, no such order for summoning the private respondents as additional accused was passed before the conclusion of the trial of main case, in that eventuality, the pointed observations in the above said judgment are not at all attracted to the facts of the present case, particularly when section 319 Cr.PC posits that “where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.” The words “in the course of trial” are most important and carry a significant meaning in this relevant connection. Therefore, the course (pendency) of the trial is a condition precedent, for summoning the additional accused u/s 319 Cr.PC and not otherwise. This matter is no more res integra and is now well settled.

14. An identical question came to be decided by this Court in CRR No. 1882 of 2011 titled as “Rakesh Kumar v. State of Haryana” decided on 4.10.2012 Taking into consideration the essential ingredients of section 319 Cr.PC, it was ruled that no person can legally be summoned as an additional accused to face the trial along with other co-accused under this section after the conclusion of the trial of main case. Thus, the contrary contentions of learned counsel for petitioner-complainant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances as the ratio of law laid down in Rakesh Kumar's case (supra) “mutatis mutandis” is applicable to the facts of this case and is the complete answer to the problem in hand.

15. Meaning thereby, the trial Judge has recorded the cogent grounds in this relevant direction. Such order, containing valid reasons, cannot possibly be interfered with by this Court, in the exercise of limited revisional jurisdiction under Section 401 Cr.PC, unless and until, the same is illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-complainant, so, the impugned order (Annexure P1) deserves to be and is hereby maintained in the obtaining circumstances of the case.

16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

17. In the light of aforesaid reasons, as there is no merit, therefore, instant revision petition is hereby dismissed as such.