Sukhwinder Singh and Ors v. State of Punjab and Another

CRM-M-11692-2025 1 INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANA AToCHANDIGARH oooooooo CRM-M-11692-2025 oo o Decidedoono:19.05.2025 SukhwinderoSinghoandootherso .o.o.oPetitioner(s) Versus StateoofoPunjaboandoanother .o.o.ooRespondent(s) CORAM:o HON'BLEoMR.oJUSTICEoSANJAYoVASHISTH Present: Mr.oG.B.S.oDhillon,oAdvocateoforotheopetitioner.o Mr.oNeerajoMadaan,oSr.oDAG,oPunjab.o Mr.oKaramjitoSinghoBrar,oAdvocateo fororespondentoNo.2-complainant. **** oSANJAYoVASHISTHoo,oJ.o(Oral)o

¶1Petitionersonamely;o(i)oSukhwinderoSingh,o(ii)oAmrikoSingh,

(iiii)oGurwinderoSinghoando(iv)oAkashdeepoSingh,ohaveochallengedothe orderodatedo25.11.2024o(AnnexureoP-7)opassedobyotheolearnedoAdditional SessionsoJudge,oFerozepuro(hereinafteroreferredotooaso"theotrialoCourt"). Byothisoorder,otheopetitionersohaveobeenosummonedoasoadditionaloaccused underoSectiono358oofotheoBharatiyaoNyayaoSanhitao(BNSS)oinoconnection with o proceedings o arising o out o of oFIR o No. o 0107 o dated o 18.10.2019, registeredounderoSectionso302,o324,o323,o148,oando149oofotheoIndianoPenal Codeo(IPC)oatoPoliceoStationoZira,oDistrictoFerozepur.o

¶2At otheo veryo outset,olearnedo counselo forotheopetitioners submitsothatoheodoesonotowishotoopressotheopresentopetitionoinsofaroasoit pertains o to o petitioner o No.2 o – oAmrik o Singh o and o petitioner o No.4 o – CRM-M-11692-2025 2 "$$ording ,!otheopetitiono>uaopetitionero%o.(o=o"'rikoSingh andopetitionero%o.0o=o"kashdeepoSinghostandsodisposedoofoasonotopressed.

¶8?heoo$$urren$eotookop a$eoono1.#10#2019!oando$onse>uent ,! theoafore'entioned oFIRoN #o010.od+/edo10#10#2019o wasoregistered againstoaotota oofo!i!eo+cc12ed!ona'e ,:oo(i)o"kashdeepoSingh!o(ii)Bohar Singh!o(iii)oMandeepoSingh!o(i#)o"'rikoSingh!o(#)oSukhwinderoSingho@ Sonu!o(#i)oParkashoSingh!o(#ii)o3oginderoSingh!o(#iii)oBittu!o(i1)o%arinder Singh.oState'entoofotheo$o'p ainant!o:nderjeetoSingh!owasore$ordedoas PA)(!oandosubse>uent ,!oon o+0./9.(/(0!otheoprose$utiono'o#edoan app i$ationounderoSe$tiono.89oofotheoBharati,ao%,a,aoSanhitao(B%SS) seekingosu''oningoofotheopetitioners!oin$ udingopetitionero%os.o(oandoti! withorespe$totoowho'otheopresentopetitionoa read,ostandsodisposedoofoas notopressed. State'entore$ordedob,otheo$o'p ainant!o:nderjeetoSingh!o beforeotheo7ourtoono20#0.#2024!oisoreprodu$edoasounder: "PW2 Inderjit Singh son of S. Sukhwinder Singh Rio Village Shah Bakar, Tehsil Zira, District Ferozepur on S.A. (Now produced from Central Jail Ferozepur) Stated that I am well conversant with English Language and I have no objection if my statement be recorded in this language. I was doing the work of agriculture. On 17.10.2019, at about 2.00 PM, I along with my friends have gone for paying obeisance at Gurudwara Baba Budha Sahib on 120 car. After reaching at Gurudwara Sahib, I recorded a video of Gurudwara Sahib and posted as a status on my whatsapp. I along with my friends returned at about 697 PM and my friends dropped me near minor bridge on Zira Road. When I alighted from the car, I had seen Akashdeep Singh son of Narinder Singh along with one sword, I ignored him and started walking towards my house. Akashdeep Singh started following me. When I reached near the house of Hardeep Singh son of Harnam Singh, then I saw Bohar Singh son of Janga Singh was standing along with rod in his hand. When I crossed Bohar Singh, he gave a blow with his iron CRM-M-11692-2025 3 rod, which hit on my back near shoulder. When he tried to give another blow, I caught hold of the rod and a scuffle took place between me and Bohar Singh. In the meanwhile Mandeep Singh son of Parkash Singh armed with Khanda, SukhwinderSingh @ Sonu son of o Darshan Singh armed with toka, Amrik Singh son of Dyal Singh armed with toka like thing, Parkash Singh and Joginder Singh both sons of Janga Singh both armed with Gandasi,Bittu son of Joginder Singh armed with Kirch, Narinder Singh son of Janga Singh empty handed came there from the side of their street at the spot. Joginder Singh son of Janga Singh gave blow of gandasi on my person, which hit on the left thigh. In the meanwhile my father Sukhwinder Singh h arrived at the spot. Amrik Singh on seeing my father raised lalkara that he should be caught also and since it is their government, so he will not let anything happen to them. On this Narinder Singh caught hold of my father and thrown him on rurri. Bohar Singh son of Janga Singh gave the blow of iron rod on the head of my father. Mandeep Singh son of Parkash Singh and Akashdeep Singh son of Narinder Singh gave a number of blows with their sword and khanda on the legs of my father and due to said blows my father's legs almost get chopped off and the remaining accused started giving beatings to me and father. After some time, the accused along with their weapons had ran away from the spot. In the meantime Gurpreet Singh son of Nishan Singh my cousin reached at the spot and took me to Civil Hospital Makhu and my father was taken to Civil Hospital Moga and my father Sukhwinder Singh expired in Civil Hospital Moga. The motive behind the occurrence was that earlier also an altercation took place between the accused side and our side, but the matter was resolved. however, the accused kept the grudge and after a conspiracy in connivance with each other, they have caused Injuries to me and my Lather, due to which my father had expired. On 18.10.2019, I got recorded my statement Ex. PW2/A to the police, which was read over and xplained to me and I put my signatures on the same at point A. I identify accused Bohar Singh and Joginder Singh present in the Court, however, accused Narinder Singh has since expired. I have not seen accused Mandeep Singh, Akashdeep Singh, Amrik Singh, Sukhwinder Singh @ Sonu, Parkash and Gurwinder Singh as they have not been challaned by the police despite their presence and causing of injuries to us. At this stage, APP for the State requested to move an application 4/s 358 BNS (319 Cr.P.C) qua aforementioned accused. Request heard and allowed. Further examination in chief is deferred. R.O & A.C. (Hardip Singh) ASJ/FZR/20.07.2024."

¶0Bponofi ingoofotheoafore'entionedoapp i$ation!o earnedotria o7ourt passedotheoi'pugnedoorderodatedo(..++.(/(0!owhereb,otheopetitioners CRM-M-11692-2025 4 wereosummoned.oAsoperothe opost-mortemoreport, oelevenoinjurieso were observedoonotheobodyoofotheodeceased,ooutoofowhichofiveowereoincised wounds,owhichowereofoundotoobeocorrespondingotootheoinjuriesoallegedly assignedotootheorespectiveoaccused.o

¶5LearnedocounseloforopetitioneroNos.o1oando3osubmitsothatothe summoningoorderodatedo25.11.2024,opassedobyotheolearnedotrialoCourt under oSection o 358 o of o the o Bharatiya o Nyaya o Sanhita o (BNSS) (corresponding o to oSection o 319 o Cr.P.C.), o is o contrary o to o the o settled principlesoofolaw.oItoisocontendedothatonoospecificoroleohasobeenoattributed tootheopetitionersoeitheroinotheoFIRooroinotheostatementomadeoonooathoby theocomplainantobeforeotheoCourt,oalthoughotheyoareoallegedotoohaveobeen armedowithoweapons. CounselofurtherosubmitsothatopetitioneroNo.3,othoughostated toohaveobeenoarmedowithoaokircho(knife),ohasonotobeenoallegedotoohave causedoanyoinjury.oItoisoarguedothat,ohadothereobeenoanyointentionoonohis partotoocommitomurder,oheowouldohaveoactivelyoparticipatedoinothe incident.oTheoabsenceoofoanyoinjuryoattributedotoohimorendersothe prosecution'soversionodoubtful,oraisingoseriousoconcernsoasotoowhetherothe narrativeoisotruthfulooroconcoctedotoofalselyoimplicateoadditionaloaccused. Aosimilarosubmissionoisomadeowithorespectoto opetitioner No.1,owhooisoallegedotoohaveobeenoarmedowithoaotoka,obutotoowhomono injuryohasobeenoattributedoeither.oThis,otoo,ocastsodoubtoonotheoveracityoof theoprosecution'socase. CRM-M-11692-2025 5 Inosupportoofohisosubmissions,oMr.oG.B.S.oDhillon,olearned counseloforotheopetitioners,oplacesorelianceouponotheofollowingojudgments: "1.oHardeepoSinghoVs.oStateoofoPunjab,o2014(1) RCRo(Crl.)o623,oLawoFinderoDocoIdo#o514454"

2.oChanderoSinghooVs.oStateoofoHaryana,o2023(1) LawoHeraldo806;

3.o DheeraoRamoVs.oStateoofoHaryanaoothers, 2023(4)oRCRo(Crl.)o526;

4.oRajeshoKumaroandoothersoVs.oStateoofoHaryana andoanother,o2024oNCPHHC,o68928o;oand

5.o SagaroVs.oStateoofoU.P.,o2022(2)oRCRo(Crl.) 344" ReferringotootheojudgmentoofoHon'bleoApexoCourtoinoHardeep Singh'socaseo(supra),otheobasicoprinciplesogoverningotheoexerciseoofopower under oSectiono319oCr.P.C.o (now oSectiono358oBNSS)owereolaidodown, counselosubmitsothat,oinotheolightoofosaidoprinciples,otheosummoningoorder quaopetitioneroNos.o1oando3oisolegallyounsustainableoandodeservesotoobeoset aside.oConsequently,otheoapplicationounderoSectiono358oofotheoBNSS,oto theoextentoitopertainsotootheosaidopetitioners,oisoliableotoobeodismissed.o

¶6Onotheootherohand,olearnedoStateocounseloasowelloasocounsel appearingoonobehalfoofotheocomplainantosubmitothatotheosubmissions advancedobyolearnedocounselofor opetitioneroNos.o1oando3o cannotobe accordedoanyoweightoatothisopreliminaryostage.oItoisocontendedothatosuch argumentsoare,oaomatteroforoconsiderationoatotheoconclusionoofotheotrial, whenotheoentireoevidence,oincludingothatoofotheodefence,oandothatotoooled byotheosummonedoaccused,owouldobeoavailableobeforeotheolearnedotrial Court.oTherefore,otheoimpugnedosummoningoorderodoesonotowarrant CRM-M-11692-2025 6

¶7Iohaveoheardotheolearnedocounseloforotheopartiesoandohave perusedotheomaterialoavailableoonorecord,owhichoisoalreadyobeforeothis Court.

¶8Undoubtedly,oasoperotheolatestojudgmentoofotheoHon'bleoApex Court,owhereinoseveraloearlierodecisionsoofotheoSupremeoCourtoand variousoHighoCourtsowereodulyoconsidered,otheopoweroofotheoCourtounder Sectiono319oCr.P.C.o (now oSectiono358oBNSS)ois onototoobeoexercised merelyoonotheobasisoofoaoprimaofacie,ocaseoagainstotheoproposedoaccused. Rather,oaohigherothresholdoofoevidenceoisorequired,ostrongerothanoaomere probabilityoofocomplicity. TheoHon'bleoSupremeoCourtohasoclearlyoheldothat,ounlikeoat theostageoofoframingoofochargesowhereoaoprimaofacieocaseosuffices,othe standardoforoinvokingoSectiono319oCr.P.C.odemandsosatisfactionothatothe evidence,oifoleftounrebutted,oisosuchothatoitoisolikelyotooleadotooaoconviction. Inothisocontext,otheoApexoCourtohadospecificallyoframedoa question o for o determination, o which o is o reproduced o hereinbelow o for reference: "oWhatoisotheonatureoofotheosatisfactionorequiredotooinvokeothe powero undero Sectiono 319o Cr.P.C. oto oarraigno ano accused? Whether o the o power o under o Section o 319(1)Cr.P.C. o can o be exercised, o only o if o the o Court o is o satisfied o that o the o accused summonedowilloinoallolikelihoodoconvicted." Answeringotheoaforementionedoquestion,otheoConstitutionoBench ofotheoHon'bleoSupremeoCourt,oin oHardeepoSingh'socaseo(supra)o madeothe followingoobservationsoinoparagraphso97,o98,oando99: "97.o InoPalanisamyoGoundero&oAnr.ov.oState,orepresentedoby InspectoroofoPolice,o2006(2)oRCRo(Criminal)o235o:o(2005)o12 SCCo327,othisoCourtodeprecatedotheopracticeoofoinvokingothe CRM-M-11692-2025 . power under Section 319 Cr.P.C. just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court. *2. Power under Section 319 Cr.P.C. is a discretionary and an extra9 ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. 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 evidence led before the court that such power should be exercised and not in a casual and cavalier manner. **. Thus, we hold 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 Cross9Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised 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 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused." Ahenonoospe$ifi$oro eoisoattributedotootheoproposedoa$$used!othis 7ourt!oinotheo$aseoofoChander Singho(supra)!ohasoa sootakenoaosi'i ar #iew.o:n oparagraphso9oando;o ofotheojudg'ent!otheo7ourtoobser#edoas under:o "2. Applying the test in the present case, no further evidence than what was available during investigation and was relied upon by the Investigating Agency, has been brought to the notice of this Court nor there was any before the trial Court. Only when a strong and cogent evidence is led against a person, that such power under Section 319 Cr.P.C. can be exercised. It is not to be exercised in a casual manner. The discretion granted under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the court is satisfied that some offence has been committed by such person. No doubt, the complainant had specifically named respondent Nos. 2 to 7 (in CRR9287492018) and respondents No. 2 and 3 (in CRR9228892019) in the FIR and his presence cannot be doubted. However, the petitioner has not attributed any specific role to respondents Nos. 2 to 7 (in CRR9 CRM-M-11692-2025 8 2874-2018)oandorespondentsoNo.o2oando3o(inoCRR-2288-2019). Merelyobecauseotheoprivateorespondentsohadobeenonamedoinothe FIRoandoinotheostatementorecordedobyotheocomplainantobeforeothe trialocourt,owouldonotobeoaogroundotooinvokeotheopowersounder Sectiono319oCr.P.C.oWhatoisorequiredoisothatotheomaterial,owhich isobroughtobeforeotheoCourt,omustobeoofosuchoaonatureoasowould satisfyotheoCourtothatoitowouldoreasonablyoleadotooconvictionoof the o person o sought o to o be o summoned. TheotrialoCourtohasorightlyoheldothatothereoisonoojustificationoto exercise o the o powers o under o Section 319oCr.P.C.

9.o Asoaoresultoofoaboveodiscussion,onoofaultocanobeofoundowith theoimpugnedoorderodatedo09.08.2018opassedobyotheolearned Addl.oSessionsoJudge,oPalwal,odismissingotheoapplicationounder Section o 319 o Cr.P.C. o filed o by o the o petitioner, o for o summoning respondentsoNos.o2otoo7o(inoCRR-2874-2018)oandorespondents No. o 2 o and o 3 o (in o CRR-2288-2019) o as o additional o accused. Accordingly,otheoimpugnedoorderodatedo09.08.2018oisoupheldoand bothotheorevisionopetitionsoareodismissed."

¶9Theoratiooofolawolaidodownoonotheoissueounderoconsiderationohas alsoobeenoreaffirmedobyotheoHon'bleoSingleoBenchoofothisoCourtoinoitsoorder datedo27.03.2023opassedoinotheocaseoofoDheeraoRamo(supra).oInothatojudgment, theoCourtotookonoteoofotheofindingsorecordedobyotheoHon'bleoApexoCourtoin HardeepoSingho (supra),oandoreiteratedothat oifotheotestolaidodownothereinois applied,otheoCourtomustorefrainofromoexercisingoitsopowerounderoSectiono319 Cr.P.C.o(nowoSectiono358oBNSS)oinoaomechanicaloororoutineomanner,oespecially inotheoabsenceoofosufficientomaterial.oTheopoweroisotoobeoexercisedosparingly andoonlyoinoexceptionalocircumstances,owhereotheoevidenceoonorecordoclearly justifiesosuchoinvocation.

¶10Further, o reliance o placed o by o learned o counsel o for o the petitionersoonotheocaseoofoRajeshoKumaroandootherso(supra)oisoalsooon similarolegalofooting,oreinforcingotheoprincipleothatomereopresenceoor suspicionoisonotosufficient,othereomustobeocogentoandocredibleoevidence indicatingotheoinvolvementoofotheoproposedoaccusedotootheoextentothat,oif unrebutted,oitowouldolikelyoleadotooconviction. CRM-M-11692-2025 9 ++. "totheopre i'inar,ohearingohe doono8/./0.(/(.!ouponore$ordingothe sub'issionsoofotheoparties!othiso7ourtopassedotheofo owingoorder:o "1. Through present petition filed u/s 528 of BNSS, 2023, petitioners are seeking quashing of order dated 25.11.2024 (Annexure P97), passed by learned Additional Sessions Judge, Ferozepur, whereby, petitioners have been summoned as accused, on an application filed u/s 358 of BNSS, 2023, in case FIR No.107, dated 18.10.2019, u/s 302/324/323/148/149 IPC, registered at P.S. Zira, District Ferozepur (Annexure P92).

¶2Claimant – respondent No.2 in the present case is 'Inderjit Singh', who himself claims to be injured one. Occurrence took place on 17.10.2019 at 2:00 P.M., and consequently, FIR No.107, dated 18.10.2019, lodged u/s 302/324/323/148/149 IPC, registered at P.S. Zira, District Ferozepur, wherein, total 9 accused, namely; (i) Akashdeep Singh, (ii) Bohar Singh, (iii) Mandeep Singh, (iv) Amrik Singh, (v) Sukhwinder Singh @ Sonu,

(vi) Prakash Singh, (vii) Joginder Singh, (viii) Bittu @ Gurwinder Singh, & (ix) Narinder Singh. The details of roles attributed to all the accused9persons, in the FIR, are mentioned here9under:9 Sr.o3o. 3ameo Ro/eo4ttributed i. Akashdeep Singh Gave a Kirpan (sword) blow on legs of deceased and it get chopped ii. Sukhwinder Singh @ Armed with Toka, but not attributed Sonu any injury. iii. Bohar Singh Armed with iron rod and given iron rod blow on the left side of the back of the complainant and also on the head of the deceased with iron rod. iv. Mandeep Singh Armed with Khanda and has given blow on the legs of the deceased and crushed them. v. Amrik Singh Gave lalkara. vi. Prakash Singh Armed with Gandasi, but not attributed any specific injury. vii. Joginder Singh Gave Gandasi blow on left thigh of the injured/complainant. viii. Bittu @ Gurwinder Though armed with Kirch, but not attributed any specific role. ix. Narinder Singh Though not armed, but got hold the deceased and through him on rurri. During the course of investigation, petitioners herein along with one Parkash, were found innocent, and therefore, were placed in column No.2 (which is now column No.12).

¶3At the time of recording of the statements of the prosecution witnesses, i.e., injured/complainant – Inderjit Singh, the version given in the FIR was reiterated, and accordingly, CRM-M-11692-2025 10 aforementioned five accused were summoned by the trial Court after observing that there are total 11 injuries, which were inflicted upon the deceased, and 5 out of them were incised wounds.

¶4Learned counsel argues that the learned Trial Court has not discussed any reason for summoning of all the four petitioners herein, rather, as per the law laid down by the Hon'ble Apex Court in HardeepoSingho'.oStateoofoPunjaboand others,o251 ,3-oSCCo*2, it is mandated for the Court before exercising its power under Section 319 Cr.P.C., it is required to conclude the likelihood of the final decision qua the summoned accused, and in case, the said person is required to be summoned as accused, the scale of satisfaction of the Court, should be higher than the prima facie case, which is there for the purpose of framing of charges.

¶5Learned counsel, on instructions, also argues that two of the summoned accused, i.e., Sukhwinder Singh and Gurwinder Singh @ Bittu (petitioners No.1 and 3, respectively), are though attributed to be armed with 'Tokka' and 'Kirch' respectively, but admittedly, they have not been attributed any specific injury having been caused to any person of the complainant party. Therefore, the role of both of these persons, i.e., petitioners No.1 and3, respectively, if taken on its face value, as assigned in the FIR and then in the statement before the trial Court, does not inspire confidence about their involvement beyond the shadow of doubt, as even no lalkara or act of exhorting any other person is mentioned.

¶6Notice of motion.

¶7On asking of the Court, Mr. Amandeep Singh, DAG, Punjab, who is present in the Court, accepts notice for respondent No.1 – State and seeks time to get instructions and to file reply, if any.

¶8At this stage, Mr. Karanjeet Singh Brar, Advocate, who is already appearing on behalf of respondent No.2 (complainantti, accepts notice on behalf of respondent No.2. Requisite copies of the paper book have already been supplied to learned State counsel as well as learned counsel for respondent No.2.

¶9Learned State counsel shall file a comprehensive status report by detailing therein the reasons assigned by the Investigating Officer qua the accused Sukhwinder Singh and Gurwinder Singh (petitioners No.1 and 3 herein), and as to whether they were joined during investigation or not, and if joined, what kind of weapon(s) were recovered at their instances.

¶10List again on 19.05.2025. To be shown in the urgent list." +(. Cookingoatotheoe#iden$eoreprodu$edohereinabo#eoandoapp ,ingothe ega oprin$ip eso aidodownob,otheoFonEb eo"pe1o7ourtoinotheo7onstitution Ben$hojudg'entoofoHardeepoSingho)214*+-!oitoisoe#identothatotheo7ourt CRM-M-11692-2025 11 isounableotoorecordoaofindingothat,oonotheobasisoofotheoevidenceoavailable beforeoit,othereoareoreasonableogroundsosatisfyingothat,oifosuchoevidence goesounrebutted,othereoisoeveryolikelihoodoofotheoconvictionoofothe summonedoaccused–petitionersoNo.o1oando3."o Accordingly,otheoimpugnedoorderodatedo25.11.2024oisohereby setoasideoquaopetitionersoNo.o1oando3oonly.oResultantly,otheoapplication underoSectiono358oofoBNSSostandsodismissedoquaotheosaidopetitioners. Petitionostandsodisposedoof.o (SANJAYoVASHISTH) JUDGE

19.05.2025 Rashmi Whetherospeaking/reasoned: ooYes/No WhetheroReportable: ooooooooooooooYes/No