Kulwinder Singh vs State Of Punjab And Another

CRM-M-12265-2019 (O&M) -1-


IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH



CRM-M-12265-2019 (O&M)
Kulwinder Singh ...Petitioner
Versus
State of Punjab and another ...Respondents

Sr. No. Particulars Details
1 The date when the judgment is reserved 25.08.2026
2 The date when the judgment is pronounced 09.09.2026
3 The date when the judgment is uploaded on the website 09.09.2026
Whether only operative part of the judgment is pronounced or full
4 Full
judgment is pronounced
The delay, if any, of the pronouncement of full judgment, and Not
5
reasons thereof applicable
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present:- Mr. Manuj Nagrath, Advocate
for the petitioner.

Ms. Ruchika Sabherwal, Sr. DAG, Punjab.

Ms. Ritu Punj, Advocate,
Mr. Ankit Chaudhary, Advocate,
Mr. Anil K. Bhardwaj, Advocate and
Mr. Vaibhav Garg, Advocate
for respondent No. 2.


MANISHA BATRA, J.
1. Through the present petition filed under Section 482 of the Code
of Criminal Procedure, 1973, the petitioner seeks quashing of order dated
10.01.2019, passed by the Court of learned Additional Sessions Judge,
Ludhiana in case arising out of FIR No. 343 dated 13.12.2007, registered
under Sections 323, 324 and 34 of IPC at Police Station Payal, Ludhiana,
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whereby Criminal Revision No.1133 of 2017 was allowed and the matter was
remanded to the trial Court for fresh consideration of the application under
Section 319 Cr.P.C. The petitioner also seeks quashing of order dated
08.02.2019, passed by the learned Judicial Magistrate First Class, Payal,
whereby the application under Section 319 Cr.P.C. was allowed and the
petitioner was summoned to face trial in the aforesaid case, along with all
subsequent proceedings arising therefrom.
2. Adumbrated facts relevant for this petition and as alleged in the
FIR are that on 12.12.2007 at about 10.00 a.m., complainant Avtar Singh was
going from his house towards his motor. When he reached near the motor,
Amrik Singh, Jasvir Singh and others were present there. Amrik Singh raised
a lalkara and the persons accompanying him came towards the complainant
with weapons. The complainant turned his motorcycle towards the village, but
the said persons followed him. Daljit Singh alias Maza gave a stick blow on
his left shoulder. The complainant thereafter entered his house, where his
father Gurpal Singh was also present. The said persons also entered into his
house. Jasvir Singh attacked the complainant with a gandasa, causing injury to
his right arm. When Gurpal Singh came forward to save him, Amrik Singh
attacked him with a gandasa and Kulwinder Singh (petitioner) gave a stick
blow on the shoulder of Gurpal Singh. Jasvir Singh also attacked Gurpal
Singh and Daljit Singh gave a stick blow. On gathering of people, the
assailants ran away from the spot. The complainant and his father were
thereafter taken to CMC, Ludhiana for treatment.
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CRM-M-12265-2019 (O&M) -3-

3. After registration of the FIR, investigation proceedings were
initiated. A cross-case vide GD No.22 dated 13.12.2007 was also registered
on the statement of Daljit Singh. After completion of investigation, the police
presented the report under Section 173 Cr.P.C. against Amrik Singh, Jasvir
Singh and Daljit Singh, whereas the name of the petitioner Kulwinder Singh
was kept in column No.2.
4. During the trial, PW1 Gurpal Singh, an injured witness, named
the petitioner and attributed a stick blow to him. On the basis of his statement,
an application under Section 319 Cr.P.C. was initially allowed by the trial
Court on 19.11.2011. The petitioner challenged the order and the learned
Additional Sessions Judge, Ludhiana, vide order dated 06.03.2013, set aside
the summoning order on the ground that the cross-examination of Gurpal
Singh had not been completed.
5. Thereafter, after completion of the cross-examination of Gurpal
Singh, another application under Section 319 Cr.P.C. was moved, which was
dismissed by the trial Court on 20.01.2014. The complainant challenged the
said order and the learned Additional Sessions Judge, Ludhiana, vide order
dated 08.12.2014, remanded the matter for fresh consideration. Thereafter, the
application was again dismissed on 27.10.2017. The revision filed against that
order was allowed by the learned Additional Sessions Judge on 10.01.2019
and the matter was again remanded to the trial Court. Pursuant thereto, the
trial Court again considered the application under Section 319 Cr.P.C. and,
vide order dated 08.02.2019, summoned the petitioner as an additional
accused. The trial Court relied upon the evidence of Gurpal Singh and Avtar
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CRM-M-12265-2019 (O&M) -4-

Singh, the mention of the name of petitioner in the FIR and the fact that the
petitioner was shown as an eye-witness in the cross-case. Aggrieved thereof,
the petitioner has filed this petition.
6. It is argued by learned counsel for the petitioner that the
petitioner has been falsely implicated in the case. It is argued that after
investigation, the petitioner was found innocent and his name was kept in
column No.2 of the report under Section 173 Cr.P.C. It is argued that the
petitioner was a student of Desh Bhagat Polytechnic College, Dhuri, on the
date of occurrence and was present in the college with his friends Jasprit
Singh and Sukhchain Singh. His presence was also supported by the college
record and the statement/report of the Principal. It is argued that this material
showing his alibi has not been properly considered by the trial Court. Learned
counsel further argued that the trial Court wrongly treated the petitioner as the
eye-witness in the cross-case, whereas the person named there was Kulwinder
Singh son of Mukhtiar Singh and not the present petitioner, who is Kulwinder
Singh son of Amrik Singh. It is argued that the order dated 08.02.2019 is
therefore factually incorrect. Learned counsel also argued that the repeated
remands in the proceedings under Section 319 Cr.P.C. have caused
considerable delay and harassment to the petitioner. It is further argued that
there is no sufficient material to summon the petitioner under Section 319
Cr.P.C. and that the continuation of the proceedings against him amounts to
abuse of process of law. Prayer is accordingly made for quashing the
impugned orders and the subsequent proceedings. To fortify his arguments,
learned counsel for the petitioner has relied upon Jamin and another v. State
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CRM-M-12265-2019 (O&M) -5-

of Uttar Pradesh and another, 2025 INSC 330 and Ramesh Chandra
Srivastava v. State of U. P. and another, 2021 (4) RCR (Criminal) 219 .
7. Learned State counsel has argued that the petitioner was named
in the FIR and was also attributed a specific role. It is argued that during
investigation, his name was kept in column No.2 but during trial PW1 Gurpal
Singh specifically named him and attributed a stick blow to him. It is further
argued that the plea of alibi taken by the petitioner is a matter of evidence and
cannot be finally decided at this stage. Hence, it is urged that the petition is
liable to be dismissed.
8. Learned counsel for respondent No.2 has argued that the
petitioner has deliberately placed a wrong translation of the FIR/challan
before this Court with a view to mislead it. It is argued that the FIR
specifically mentions the petitioner, along with his father's name, and
attributes a specific role to him. Learned counsel submits that the petitioner
has, therefore, not approached this Court with clean hands and is not entitled
to any relief. It is argued that PW1 Gurpal Singh has named the petitioner and
attributed a specific role to him. The plea regarding his presence in the college
is a matter of evidence and can be established during trial. Hence, it is urged
that the petition is liable to be dismissed.
9. This Court has heard the rival submissions.
10. The issue relating to the powers to be exercised under Section
319 of Cr.P.C. had arisen for detailed consideration in Hardeep Singh v. State
of Punjab, (2014) 3 SCC 92 , wherein the scope, procedure and the stage at
which such power was to be exercised was considered and summarized. It was
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CRM-M-12265-2019 (O&M) -6-

observed by Hon’ble Supreme Court that the power under Section 319 Cr.P.C.
is discretionary and an extraordinary power. It has to be exercised sparingly
and only in those cases where the circumstances of the case so warrants. It is
not to be exercised because the Magistrate or the Sessions Judge, is of the
opinion that some other person may also be guilty of committing that offence.
Only where strong and cogent evidence occurs against a person from the
material placed before the Court that such power should be exercised and not
in a casual and cavalier manner. It was also observed that though only a prima
facie case is to be established from the evidence led before the Court, not
necessarily tested on the anvil of cross-examination, it requires much strong
evidence than mere probability of his complicity. The test that has to be
applied is one which is more than prima facie case as has been established at
the time of framing of charge, but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to conviction. In the absence of such
satisfaction, the Court should refrain from exercising power under Section 319
of Cr.P.C.
11. The legal position on the scope and ambit of powers of the Court
under Section 319 of Cr.P.C. has also been summarized by Hon’ble Apex
Court in the case cited as Manjeet Singh v. State of Haryana and others,
(2021) 18 Supreme Court Cases 321 , wherein it was observed as under:-
“(i) That while exercising the powers under section 319
CrPC and to summon the persons not charge-sheeted, the
entire effort is not to allow the real perpetrator of an
offence to get away unpunished.
(ii) For the empowerment of the courts to ensure that the
criminal administration of justice works properly.
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CRM-M-12265-2019 (O&M) -7-

(iii) The law has been properly codified and modified by
the legislature under CrPC indicating as to how the courts
should proceed to ultimately find out the truth so that the
innocent does not get punished but at the same time, the
guilty are brought to book under the law.
(iv) To discharge duty of the court to find out the real truth
and to ensure that the guilty does not go unpunished.
(v) Where the investigating agency for any reason does not
array one of the real culprits as an accused, the court is not
powerless in calling the said accused to face trial.
(vi) Section 319 CrPC allows the court to proceed against
any person who is not an accused in a case before it.
(vii) The court is the sole repository of justice and a duty is
cast upon it to uphold the rule of law and, therefore, it will
be inappropriate to deny the existence of such powers with
the courts in our criminal justice system where it is not
uncommon that the real accused, at times, get away by
manipulating the investigating and/or the prosecuting
agency.
(viii) Section 319 CrPC is an enabling provision
empowering the court to take appropriate steps for
proceeding against any person not being an accused for
also having committed the offence under trial.
(ix) The power under section 319(1) CrPC can be
exercised at any stage after the charge-sheet is filed and
before the pronouncement of judgment, except during the
stage of Sections 207/208 CrPC, committal, etc. which is
only a pretrial stage intended to put the process into
motion.
(x) The court can exercise the power under section 319
CrPC only after the trial proceeds and commences with the
recording of the evidence.
(xi) The word "evidence" in section 319 CrPC means only
such evidence as is made before the court, in relation to
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statements, and as produced before the court, in relation to
documents.
(xii) It is only such evidence that can be taken into account
by the Magistrate or the court to decide whether the power
under section 319 CrPC is to be exercised and not on the
basis of material collected during the investigation.
(xiii) If the Magistrate/court is convinced even on the basis
of evidence appearing in examination-in-chief, it can
exercise the power under section 319 CrPC and can
proceed against such other person(s).
(xiv) That the Magistrate/court is convinced even on the
basis of evidence appearing in examination-in-chief,
powers under section 319 CrPC can be exercised.
(xv) That power under section 319 CrPC can be exercised
even at the stage of completion of examination-in-chief
and the court need not to wait till the said evidence is
tested on cross-examination.
(xvi) Even in a case where the stage of giving opportunity
to the complainant to file a protest petition urging upon the
trial court to summon other persons as well who were
named in FIR but not implicated in the charge-sheet has
gone, in that case also, the Court is still not powerless by
virtue of section 319 CrPC and even those persons named
in FIR but not implicated in the charge-sheet can be
summoned to face the trial, provided during the trial some
evidence surfaces against the proposed accused (may be in
the form of examination-in-chief of the prosecution
witnesses).
(xvii) While exercising the powers under section 319 CrPC
the Court is not required and/or justified in appreciating
the deposition/evidence of the prosecution witnesses on
merits which is required to be done during the trial.”

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CRM-M-12265-2019 (O&M) -9-

12. On applying the aforementioned proposition of law to the
peculiar facts and circumstances of the present case, it is revealed that the
petitioner was specifically named in the FIR and a specific role was attributed
to him. During the course of trial, PW1 Gurpal Singh, who himself is an
injured witness, also specifically named the petitioner and stated that he had
given a stick blow on his shoulder. Thus, the order summoning the petitioner
under Section 319 Cr.P.C. is not based merely on his name appearing in the
FIR but is also supported by the evidence which came on record during the
trial. The fact that the name of the petitioner was placed in column No.2 by
the investigating agency does not, by itself, furnish a ground for interference,
as the power under Section 319 Cr.P.C. can be exercised on the basis of
alibi
evidence which subsequently comes before the trial Court. The plea of
raised by the petitioner is also a matter which requires appreciation of
evidence and cannot be conclusively examined in proceedings under Section
482 Cr.P.C.
13. As regards the plea that the person named in the FIR and the
person referred to in the cross-case are different persons having the same
name, the said dispute regarding the identity of the petitioner is also a matter
which can be examined during the course of trial. At this stage, in view of the
specific reference to Kulwinder Singh son of Amrik Singh in the material
before the Court and the deposition of the injured witness, this disputed
question of identity cannot be made a basis for quashing the summoning
order.
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14. So far as the judgment rendered in Ramesh Chandra
Srivastava’s case (supra) is concerned, it lays down that the power under
Section 319 Cr.P.C. is extraordinary and should be exercised only when
strong and cogent evidence comes on record. The said judgment, however, is
distinguishable on facts, as in the present case the injured witness has
specifically named the petitioner and attributed a definite role to him. The
judgment in Jamin’s case (supra) also does not assist the petitioner, rather it
recognises that mere placement of a person in column No.2 by the
investigating agency does not prevent his being summoned under Section 319
Cr.P.C. on the basis of evidence recorded during trial. Therefore, in view of
the aforesaid discussion, this Court finds no perversity or illegality in the
impugned orders warranting interference in exercise of its inherent
jurisdiction. The present petition is, accordingly, dismissed. The interim stay
granted by this Court, vide order dated 18.03.2019, stands vacated. The trial
Court shall proceed with the trial in accordance with law.


09.09.2026 (MANISHA BATRA)
Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari
JUDGE



Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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