Criminal Misc. No. M-42107 of 2004 & [ 1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. M-42107 of 2004
Date of decision: 5.03.2009
Gurnam Singh ......Petitioner
Versus
State of Punjab and another ......Respondents
Before: HON’BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. Yogesh Goel, Advocate
for the petitioner.
Mr. Gaurav Garg Dhuriwala, AAG Punjab,
for respondent no. 1.
RAJIVE BHALLA, J.(Oral)
Prayer in this petition filed under Section 482 of the Code
of Criminal Procedure is for setting aside the order dated 4.02.2004
passed by the Additional Sessions Judge, Ludhiana, whereby the
petitioner has been summoned to face trial as an additional accused.
Counsel for the petitioner submits that the learned trial
court has passed a non-speaking order and even otherwise the
impugned order does not meet the parameters of an order required to
be passed under Section 319 of the Code of Criminal Procedure . It is
submitted that apart from setting out the facts, the impugned order,
is devoid of any reason, much less cogent reasons.
Counsel for the State of Punjab submits that the learned
trial court has referred to the medical record, the injuries on the
person of the injured-complainant and as a prima facie case is made
out against the petitioner, therefore, the present petition, be
dismissed.
Criminal Misc. No. M-42107 of 2004 & [ 2]
I have heard learned counsel for the parties and perused
the impugned order. The impugned order is devoid of the
fundamental attributes of a judicial order. Apart from setting out the
facts in a perfunctionary manner, no reasons much less cogent reasons
have been assigned for summoning the petitioner. It would also be
necessary to mention here that PW-1 has not been cross-examined
and even his examination in chief is also incomplete. The power under
Section 319 of the Code of Criminal Procedure is to be exercised
judiciously and only where it appears to the Court , from the
evidence on record that the person sought to be summoned has
committed an offence, for which he can be tried with the already
arraigned accused. It appears that Additional Sessions Judge,
Ludhiana, disregarded the fundamental principles that govern the
exercise of jurisdiction under Section 319 of the code of Criminal
Procedure and therefore, committed an error of jurisdiction.
In view of what has been stated above, the present
petition is allowed, the Order dated 4.02.2004 is set aside and the
matter is remitted to the Additional Sessions Judge, Ludhiana, to
decide the application, filed under Section 319 of the Code of Criminal
Procedure afresh after the cross-examination of PW-1 concludes or
after the prosecution leads such further evidence as the trial court
deems appropriate.
The learned Additional Sessions Judge, Ludhiana, shall
decide the application within a fortnight of the receipt of a copy of this
order.
[RAJIVE BHALLA]
JUDGE
5th March, 2009
SKaushik