Not evaluate the evidence in detail while using the powers U/S 319 Cr.P.C – P&H HC

On dated 10 Feb 2022 Hon’ble Punjab and Haryana High Court observed in the Judgement (TARBALBIR SINGH VS STATE & OTH.) that the crucial test for summoning an additional accused must be higher than a prima facie case but not to the extent that the evidence would lead to conviction if left unrebutted. 

Facts - An FIR was registered by the complainants against five accused persons. The accused persons were accused of inducing the complainants to start a business of trading in gold and then committing fraud, cheating, and criminal breach of trust. Following the registration of the FIR, an inquiry took place to investigate the accusations. Accused No.2, No.3, and No.4 were found to have no evidence against them and were exonerated. The private respondents were placed in Column No.2. 

An application was made under Section 319 of the Criminal Procedure Code (Cr.P.C.) to summon respondent Nos. 2, 3, and 4. However, the Court of Judicial Magistrate, 1st Class in Amritsar concluded that the evidence on file was insufficient to lead to a conviction and dismissed the application. The petitioner filed a revision petition against the order, but the Revisional Court also came to the same conclusion that the evidence was insufficient to summon the accused as partners in M/s Pannu Commodities and that the statement of the complainant was not enough to do so. The order was upheld by the Additional Sessions Judge in Amritsar. 

A petition has been filed challenging the dismissal of an application under Section 319 of the Criminal Procedure Code (Cr.P.C.) for summoning respondents 2, 3 and 4. 

Contentions - The petitioner's counsel argues that the evidence in the FIR and the testimony of Tarbalbir Singh is enough to establish the prima facie guilt of the private respondents, and that they should be summoned. He claims that the test applied by the courts, which was that the evidence was insufficient to ensure conviction, was the wrong test and cites several Supreme Court cases to support his argument. The counsel for the private respondents counters that the FIR does not indicate any offense, and that the petitioner's testimony in court was an improvement and cannot be relied upon. He argues that the entire family of the main accused, Ashwani Sharma, has been implicated and the respondents were not a party to the partnership. The state counsel argues that there is sufficient evidence to summon the private respondents for trial. 

The High Court observed that provisions of Section 319 of the Criminal Procedure Code (Cr.P.C) empower the court to proceed against a person who appears to have committed an offense, even if that person is not the accused in the case. The court may proceed against such a person if it appears from the evidence produced in the course of the inquiry or trial that the person has committed the offense.  

The High Court further observed that exercising powers under Section 319 Cr.P.C. should not appreciate the evidence of prosecution witnesses on merits, as that is done during the course of the Trial. The test applied by both the Courts was that the evidence was insufficient to lead to conviction, but they stepped into the domain of evidence appreciation, which is not justified at this stage. 

The High Court quashed the order and the case remanded back to the Magistrate for a fresh order within 4 weeks. 

TARBALBIR SINGH  VS STATE & OTH.