Harbhajan
Singh & ANR. Vs. State of Punjab & ANR. [2009] INSC 1309 (29 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1351
OF 2009 [Arising out of SLP (Crl.) No.3002 of 2008] Harbhajan Singh & Anr.
.....Appellants Versus State of Punjab & Anr. .....Respondents
S.B.
Sinha, J.
1.
Leave granted.
2.
Appellants are before us aggrieved by and dissatisfied with the
judgment and order dated 19th March 2008 passed by a learned Single Judge of
the High Court of Punjab & Haryana at Chandigarh whereby and whereunder the
revision application filed by them questioning the legality and/or validity of
the order dated 11th September 2006 passed by the learned Addl. Sessions Judge,
Jalandhar allowing an application under Section 319 of the Code of Criminal
Procedure (for short, `the Code') filed by the 2 complainant (respondent no.2
herein) summoning them as additional accused in connection with FIR No.45 dated
13th March 2005 under Sections 306/509/420/120-B/456 of the Indian Penal Code,
was dismissed.
3.
Appellants and one Sarabjit Singh used to live together. Sarabjit
Singh is the brother of the appellant no. 2. He used to follow the deceased
Rajni despite protests made by her. He gave a proposal of marriage to her which
was not accepted. Appellants also asked her to marry Sarabjit, but she refused.
She was threatened of being blackmailed stating that some obscene photographs
of hers would be shown to others. On 12 th March 2005 Sarabjit Singh threw some
obscene photographs of the deceased at her house as well as at the house of her
paternal uncle - Kamaljeet. He telephoned the deceased that her father and
uncle must have received the gift sent by him.
She
thereafter committed suicide by consuming `sulphos' tablets.
4.
A First Information Report was lodged. However, the charge-sheet
was submitted only against Sarabjit Singh. Witnesses were examined before the
learned Addl. Sessions Judge. They categorically stated that not only Sarabjit
Singh but also the appellants, when informed that the deceased did not want to
marry Sarabjit, threatened that they would `defame' Rajni.
According
to the said witnesses, they had gone to the house of Harbhajan Singh -
appellant no.1 a week prior to her death in that connection. It was 3
categorically stated that the deceased consumed `sulphos' tablets as Sarabjit
and the appellants used to harass her. In cross-examination, the complainant -
Subhash Chander furthermore stated that his sons had informed him that they had
received a telephonic message from Sarabjit Singh as to whether they had
received the gift sent by him to them.
5.
The learned Addl. Sessions Judge passed the said order dated 11th
September 2006 summoning the appellants as additional accused in the said case,
stating:
"I
have heard the learned Addl. P.P. for the state as well as perused the
documents in the file, as well as statement made by Subhash Chander father of
Rajni before the police as well as his statement recorded in the Court and also
the statement of Rajni deceased at the time of her death given to the police.
Rajni as well as her father have named both Harbhajan Singh and Rajnit Kaur as
active participants in the commission of the offence of abetting her suicide
alongwith accused Sarbjit Singh @ Sabhi. All three of them have black mailed
her by throwing her nude photographs before her house as well as in front of
the house of her uncle in order to defame her and in order to pressurize her to
marry Sarbjit Singh @ Sabhi.
There is
sufficient material to proceed against the accused. A lady at the time of her
death will never tell a lie. The very fact that she has named all the three
persons in the abetment of her suicide carries conviction. In view of the above
said facts I allow the application and order that Harbharaj Singh son of Sarwan
Singh and Ranjit Kaur w/o Harbhajan Singh both residents of E-104, Upkar Nagar
(Jaimal Nagar), P.S. Division No.8, Jalandhar be 4 summoned as accused to face
trial alongwith accused Sarbjit Singh @ Sabhi as their summoning is essential
in the interest of justice and for the just and proper decision of the case.
They be summoned for 28.9.06."
6.
The High Court, by reason of the impugned judgment, has dismissed
the revision application filed by the appellants herein, stating:
"....
However, Subhash Chander has specifically stated that they had met the
petitioners even one week before the death of the deceased. In all, Subhash
Chander stated that they had met the petitioners three times. If the
petitioners were reiterating their threat to defame the deceased, throwing of
obscene photographs of the deceased at her house even by Sarabjit Singh alone,
would not exonerate the petitioners at this stage because it was in
continuation of the series of acts of the petitioners themselves as well. Here
it would not be out of place to notice that even the deceased in her statement
(dying declaration) specifically stated that the petitioners and Sarabjit Singh
are responsible for her suicide. In view of the aforesaid, it cannot be said
that there is no prima facie for proceeding against the petitioners. The
impugned order does not suffer from any illegality or error of
jurisdiction."
7.
Mr. Satinder S. Gulati, the learned counsel appearing on behalf of
the appellants would submit that the learned Addl. Sessions Judge as also the
High Court committed a serious error insofar as they failed to take into
consideration that the ingredients of Section 306 of the Indian Penal Code 5
having not been fulfilled inasmuch as the immediate cause for committing
suicide being throwing of nude photographs of the deceased having been
attributed to Sarabjit Singh alone, the appellants could not have been summoned
as additional accused. The learned counsel, in this behalf, would strongly rely
upon the decision of this Court in the case of Mohd. Shafi v. Mohd. Rafiq &
Anr. (2007) 4 SCR 1023 = 2007(5) SCALE 611.
Our
attention has further been drawn to the fact that correctness of decision in
the case of Mohd. Shafi (supra) insofar as it was held that order summoning the
accused may be passed only upon cross-examining the witnesses, having been
doubted, has been referred to a three-Judge Bench.
8.
The learned counsel appearing on behalf of the respondents, on the
other hand, would support the impugned judgment.
9.
In this case, the deceased made a dying declaration. In the said
dying declaration not only Sarabjit Singh but also the appellants herein were
named as the persons who were responsible for her death. Correctness of the
said dying declaration at this stage is not and cannot be questioned. It may be
true that the appellants were not charge-sheeted but it is now well settled, by
reason of various decisions of this Court, that only because no charge-sheet
has been submitted against certain persons, the same by itself, would not be a
sufficient ground for the court at a later stage, namely, upon 6 consideration
of the evidence adduced before it by the prosecution to decline to exercise its
jurisdiction to add other persons as accused for trying them for offences which
appear to it to have been committed by them.
The dying
declaration together with statements made by the prosecution witnesses show
commission of an offence. Appellants took side of Sarabjit Singh. They not only
asked the deceased to marry him but even threatened her as also her parents
that in case of refusal, she would be `defamed'.
It is not
possible, keeping in view the nature of evidence which was made available
before the learned Addl. Sessions Judge, to arrive at a conclusion that the said
evidence, even if given face value and taken to be correct in its entirety; had
not disclosed commission of an offence or on the basis thereof a judgment of
conviction cannot be recorded at all.
Appellants
had raised certain defences. The same ultimately may or may not be accepted.
But, indisputably, at this stage, the evidence adduced discloses some offence.
10.
In the case of Municipal Corporation of Delhi v. Ram Kishan
Rohtagi & Ors. (1983) 1 SCC 1, it has been held as under :
7
"19. In these circumstances, therefore, if the prosecution can at any
stage produce evidence which satisfies the court that the other accused or
those who have not been arrayed as accused against whom proceedings have been
quashed have also committed the offence the Court can take cognizance against
them and try them along with the other accused. But, we would hasten to add
that this is really an extraordinary power which is conferred on the court and
should be used very sparingly and only if compelling reasons exist for taking
cognizance against the other person against whom action has not been taken.
More than this we would not like to say anything further at this stage. We
leave the entire matter to the discretion of the court concerned so that it may
act according to law. We would, however, make it plain that the mere fact that
the proceedings have been quashed against respondents 2 to 5 will not prevent
the court from exercising its discretion if it is fully satisfied that a case
for taking cognizance against them has been made out on the additional evidence
led before it."
[See also
Joginder Singh & Anr. v. State of Punjab & Anr. (1979) 1 SCC 345; Lok
Ram v. Nihal Singh & Anr. (2006) 10 SCC 192; Shashikant Singh v. Tarkeshwar
Singh & Anr. (2002) 5 SCC 738; Kailash v. State of Rajasthan & Anr.
2008(3) SCALE 338 and Sarabjit Singh & Anr. v. State of Punjab & Anr.
2009 (8) SCALE 175].
11.
In the case of Mohd. Shafi (supra), an application under Section
319 of the Code was filed by a witness. He was not the complainant. He had no
locus standi to file the application. In that case, the trial Judge had refused
to pass an order on the application filed by the complainant under Section 8
319 of the Code stating that the matter would be considered only after the
cross-examination of the witnesses is over. The State was not aggrieved by that
order and in that situation this Court refused to interfere with the inference
that such an order by the High Court at that stage was not held to be correct.
12.
Our attention, however, has been drawn to a decision of this Court
in the case of Hardeep Singh v. State of Punjab & Ors. JT 2008(12) SC 7
wherein the following questions have been referred for consideration by a
larger Bench by an order dated 07th November 2008 :
"79.
We, therefore, refer the following two questions for the consideration of a
Bench of three Hon'ble Judges:
(1) When
the power under sub-section (1) of Section 319 of the Code of addition of
accused can be exercised by a Court? Whether application under Section 319 is not
maintainable unless the cross-examination of the witness is complete? (2) What
is the test and what are the guidelines of exercising power under sub-section
(1) of Section 319 of the Code? Whether such power can be exercised only if the
Court is satisfied that the accused summoned in all likelihood would be
convicted?"
13.
We would assume that in all cases the court may not wait till
cross- examination is over for the purpose of exercising its jurisdiction. In
the aforementioned decision, the learned Judges had referred to a judgment of 9
this Court in the case of Rakesh & Anr. v. State of Haryana (2001) 6 SCC
248 wherein it was held that even without cross-examination on the basis of a
prima facie material which would enable the Sessions Court to decide whether
the power under Section 319 of the Code should be exercised or not stating that
at that stage evidence as used in Section 319 of the Code would not mean
evidence which is tested by cross-examination.
14.
Even if what is contended by the learned counsel is correct, it is
not for us to go into the said question at this stage; herein cross-examination
of the witnesses had taken place. The Court had taken into consideration the
materials available to it for the purpose of arriving at a satisfaction that a
case for exercise of jurisdiction under Section 319 of the Code was made out.
Only because the correctness of a portion of the judgment in the case of Mohd.
Shafi (supra) has been doubted by another bench, the same would not mean that
we should wait for the decision of the larger bench, particularly when the same
instead of assisting the appellants runs counter to their contention.
We may,
however, incidentally place on record that in Mohd. Shafi (supra), the trial
Court refused to exercise its discretion and postponed passing of an order till
cross-examination was over. If at that stage, the Court was not satisfied about
existence of any other material which would 10 satisfy it to exercise the
jurisdiction which as per the decision of this Court in the case of Municipal
Corporation of Delhi v. Ram Kishan Rohtagi &
Ors.
(supra) should be used very sparingly, this Court should not have passed a
favourable order at that stage itself. It was merely held that the High Court
should not have interfered with as the said provision conferred an
extraordinary power. Each case must be decided on its own facts.
If a
judicious discretion exercised by the Court had led it to pass an order under
Section 319 of the Code, the High Court exercising a revisional jurisdiction
would interfere therewith, inter alia, in a case where legal principles laid
down by this Court had not been satisfied. The decision of this Court in the
case of Mohd. Shafi (supra), therefore, in our opinion, is not an authority for
the proposition that in each and every case the Court must wait till the
cross-examination is over.
15.
Keeping in view the materials available on record as also the
nature of the order passed by the learned Sessions Judge we are of the opinion
that no interference with the impugned judgment is called for in the peculiar
facts and circumstances of the case.
16.
For the reasons aforementioned, the appeal is dismissed.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]
New Delhi;
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