Application for Summoning the Additional Accused dismissed as no Evidence had been recorded - Second Application to summon the Accused after recording some Evidence not barred

Criminal Procedure Code, 1973, Section 319 - Res judicata - Double Jeopardy - Application for summoning the additional accused dismissed as no evidence had been recorded - Second application to summon the accused after recording some evidence not barred by res judicata.

Punjab and Haryana High Court, Chandigarh Judgments

GeekUpd8 Doc Id # 707646

PUNJAB AND HARYANA HIGH COURT

Before :- K.S. Garewal, J.
Criminal Revision No. 1231 of 2001. D/d. 29.1.2002.

Bharpur Singh - Petitioner
Versus
Balwinder Singh - Respondent

For the Petitioners :- Mr. R.K.S. Brar, Advocate.
For the Respondent :- Mr. V.K. Kataria, Advocate.

ORDER
K.S. Garewal, J. - Bharpur Singh and Jeon Singh have filed this revision petition to challenge the order of learned Addl. Sessions Judge, Faridkot dated March 16, 2001 whereby the revision petition of Balwinder Singh was allowed, the order of learned Judicial Magistrate Ist Class dismissing Balwinder Singh's application under Section 319 Criminal Procedure Code was set aside and the two petitioners were directed to be summoned to stand trial.
2. Learned counsel for the petitioners submits that the case was registered on the basis of FIR lodged by Balwinder Singh. After investigation the two petitioners were kept in column 2. However, before Balwinder Singh's statement was recorded and the case was at the stage of charge an application under Section 319 Criminal Procedure Code was moved for summoning the petitioners. The said application was dismissed on May 8, 1995. The complainant filed a second application on September 20, 1995 for summoning the petitioners. That application was dismissed as well by the learned Magistrate on December 23, 1995. It was observed that since an earlier application had been dismissed and there was no change in circumstances, the second application also deserved to be dismissed. Against the said order Balwinder Singh filed a revision petition before the learned Addl. Sessions Judge, Faridkot who allowed the petition and summoned the present petitioners. Thereafter, the petitioners filed Criminal Revision Petition 1169 of 1997 before this Court, which was allowed on January 31, 1997 and directions were given to the learned Addl. Sessions Judge to dispose of the revision petition after giving a notice to the petitioners. Learned counsel contends that the petitioners did not receive any notice and were proceeded ex-parte, therefore, they filed an application for getting the ex-prate order set aside, which was allowed but ultimately on March 16, 2001 the learned Addl. Sessions Judge accepted the revision and ordered that the petitioners should stand trial. The petitioners have challenged the said order by filing this revision petition.
3. Learned counsel for the placed reliance on Pritam Singh and another v. The State of Punjab, AIR 1956, 451 (S.C.)Birhma Nand v. Seelak Ram and Ors., 1993(2) RCR 390 and Mahindro Bai and another v. State of Punjab, 2000(1) RCR(Crl.) 227 (P&H) : 2000(1) RCC 244 in support of the proposition that once an application under Section 319 Criminal Procedure Code has been dismissed, a second application shall be barred by the principles of res judicata.
4. A perusal of the first order dated May 8, 1995 would show that it was passed when the case was fixed for framing of charge. At that stage the learned Magistrate was of the view that some evidence should be recorded before persons mentioned in column 2 are summoned as accused under Section 319 Criminal Procedure Code Therefore, the application was dismissed. A perusal of the order dated December 23, 1995 would show that the learned Magistrate had refrained from summoning the petitioners under Section 319 Criminal Procedure Code because the complainant had not been cross-examined and the application was found to be premature. This order was revised by the learned Addl. Sessions Judge vide the impugned order. The Court had come to the conclusion that the only procedure to be followed by the court was to give an opportunity to the defence to cross-examine the witnesses and when proper opportunity had been given it showed that the evidence had been properly recorded, the accused could be summoned.
5. The argument that the principles of res judicata would apply because an earlier application had been dismissed does not appear to be tenable in the present case. The first application was dismissed when no evidence had been recorded. The second application was filed after the statement of the complainant had been recorded although, in spite of opportunity, the cross- examination had not been conducted. This application was dismissed by the trial Court on the ground that the application was incomplete but that order was correctly revised by the learned Addl. Sessions Judge.
6. When the provisions of Section 319 Criminal Procedure Code were invoked for the second time, the court did have evidence before it which was not the case when the provisions were invoked for the first time. The jurisdiction to summon the petitioners was correctly applied by the lower court by upsetting the order of the trial Court.
7. In view of the above discussion, I find no ground to interfere with the impugned order. Accordingly the revision is without merit and the same is dismissed.
Revision dismissed.
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