$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:4th March, 2025
+ CRL.M.C. 4603/2017, CRL.M.A. 18339/2017 (stay)
CHASVINDER SINGH .....Petitioner
Through: Ms. Rebecca M. John, Senior
Advocate with Mr. B.L. Sharma, and
Mr. Pravir Singh, Advocates.
versus
1. THE STATE (GNCT OF DELHI) .....Respondent No.1
2. SH. DHARMENDER
S/o Sh. Kedar Nath ....Respondent No. 2
Through: Mr. Shoaib Haider, APP for the State.
Mr. Jatin Sharma and Mr. S.K. Sahoo,
Advocates for R2.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
CRL.M.C. 4603/2017
1. Petition under Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as „Cr.P.C.‟) has been filed on behalf of the
Petitioner, Mr. Chasvinder Singh, to set-aside the Order dated 21.01.2017,
of the learned Metropolitan Magistrate allowing the Application under
Section 319 of Cr.P.C., to summon the Petitioner, which has been upheld by
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By:VIKAS ARORA
Signing Date:06.03.2025
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the learned ASJ, Rohini Courts vide its Order dated 08.09.2017.
2. It is submitted that on 23.06.2014, on the Complaint of Mr.
Dharmender/Respondent No. 2, FIR No. 361/2014 under Section
323/341/342/34 of the Indian Penal Code, 1860 (hereinafter referred to as
„IPC‟), Police Station Mahendra Park, was registered against the two
employees, Mr. Gaurav Sharma, Supervisors and Mr. Vikram Puri Company
Manager in the Company.
3. The Complainant, Sh. Dharmender duly participated in the entire
investigation and was aware of the status and also the names of the accused
persons against whom the FIR was registered and that the Charge Sheet did
not include the name of Petitioner. The complainant was a signatory to the
Site Plan, Arrest Memo and Personal Search Memo of the two accused
persons. His Statement under Section 161 Cr.P.C. was also recorded in this
regard.
4. After completion of investigation, Charge-Sheet under Section 173
Cr.P.C. was filed before the learned ACMM on 22.06.2015, on which the
cognizance was taken against both the accused. The two accused put in
their appearance and Charges under Section 323/341/342/34 of the IPC was
framed against them on 15.10.2015.
5. Thereafter, Complainant, Mr. Dharmender appeared as PW-1 and his
statement was recorded on 28.06.2016 wherein he named the Petitioner as
one of the assailants. Consequently, an Application under Section 319 of
Cr.P.C. was filed on behalf of Respondent No. 2, the Complainant through
Public Prosecutor, which had been allowed vide the impugned Orders.
6. Aggrieved by the said Order, the present Petition has been filed. The
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By:VIKAS ARORA
Signing Date:06.03.2025
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impugned Order is assailed on the ground that the Respondent No.
2/Complainant in his testimony dated 23.06.2016 has made glaring
improvements and levelled false allegations against the Petitioner having
been found on the scene of the incident and being a participant.
7. The glaring contradiction in his claim emerges as in his Application
under Section 319 Cr.P.C., it is stated that he came to know about non-
impleadment of the Petitioner as an accused after his Counsel obtained
certified copy of the Charge-Sheet; whereas in his cross-examination
recorded on 21.01.2017, he stated that he came to know about non-
impleadment of the Petitioner only on the date when he came to the Court
for his evidence i.e. on 29.03.2016.
8. It is submitted that the learned MM and learned ASJ have failed to
appreciate that the Petitioner was neither named in the FIR nor in the
Charge-Sheet and was not even placed in Column No. 12 of the Charge-
Sheet. It is submitted that while summoning proposed accused under
Section 319 Cr.P.C., degree of satisfaction for summoning is much higher
and different from routine summoning. In the given circumstances, the
jurisdiction under Section 319 Cr.P.C. should not have been invoked. At the
time of the taking cognizance on the Charge-Sheet against both the accused
named therein, the learned ACMM found no material on record against the
Petitioner. The Order of summoning the Petitioner under Section 319
Cr.P.C., is an abuse of process of law. Hence, the Order may be set-aside.
9. Learned counsel on behalf of the Petitioner has placed on reliance on
the following Judgments:
(i) Brijendra Singh & Ors. vs. The State of Rajasthan Criminal
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By:VIKAS ARORA
Signing Date:06.03.2025
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Appeal No. 763/2017;
(ii) Babubhai Bhimabhai Bokhiria & Anr. vs. State of Gujarat &
Ors. 2014(5) SCC 568;
(iii) Hardip Singh vs. State of Punjab 2014 (3) SCC 108;
(iv) Sarojben Ashwin Kumar Shah & Ors. vs. State of Gujarat &
Anr 2011 (2) DCR 404 SC;
(v) Sarabjit Singh & Anr. vs. State of Punjab 2009 (4) LRC 364
(SC);
(vi) Kailash vs. State of Rajasthan & Anr. 2008 Cr.L.J. 1914
(vii) Mohd. Safi vs. Mohd. Rafique & Anr. AIR 2007 SC 1899
(viii) Kavuluri Vivekananda Reddy & Anr. vs. State of A.P. & Anr.
(2005) 12 SCC 432
(ix) Krishnappa vs. State of Karnataka Cr.L.J. 2004 4185
(x) Michael Machado & Anr. vs. CBI & Anr AIR 2000 SC 1127.
10. Learned counsel on behalf of the Respondent No. 2/Complainant
submits that the Petitioner was named in the FIR in so much as Mr. Gaurav
informed that the Petitioner had conveyed to restrain “Chhotey Sardarji”
from entering the premises and in case he does so, to slap him. There were
specific averments made in the Complaint and even thereafter.
11. There is no infirmity in the impugned Order, and the Petition is liable
to be dismissed.
12. Submissions heard and the record perused.
13. FIR No. 361/2014 under Section 323/341/342/34 of the I.P.C. got
registered at Police Station Mahendra Park, on the Complaint of Mr.
Dharmender, who was working in a Swiss Company as a Security Guard.
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By:VIKAS ARORA
Signing Date:06.03.2025
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He stated that on 23.06.2014, at about 08:45 a.m., while he was present at
the gate of the Company premises in Rajasthani Udyog Nagar, GT Karnal
Road, Delhi, the Company Supervisor, Mr. Gaurav Sharma came and told
him not to permit younger owner “Sardarji” i.e Mr. Eshwinder Singh inside
the premises. Thereafter, Mr. Gaurav Sharma went in and came back along
with Mr. Vikram Puri, Company Manager after about five minutes, who also
told him not to let the “younger Sardarji” enter into the premises as per the
Order of the “elder Sardarji”. The complainant expressed his inability to be
able to stop him as they were rich persons. On this, Mr. Vikram Puri told
him that in case, younger Sardarji tells anything, you give him a slap and
rest they would take care. However, the Complainant again refused to do
any such act. On this, Mr. Gaurav Sharma and Mr. Vikram Puri caught hold
of him and slapped and dragged him to the basement. While he was trying to
come out, they did not let him do so but forcibly took off his uniform and
made him sign some blank papers. After making a request to them, he came
out and went to the Police Station and gave his Complaint against Mr.
Gaurav Sharma and Mr. Vikram Puri, on which the FIR was registered.
14. After due investigation, the Charge-Sheet against the two accused
persons, was filed in the Court on 22.06.2015, who were summoned.
Cognizance was taken on the Charge-Sheet by the learned Metropolitan
Magistrate on 22.06.2015 and the two accused were summoned.
15. Thereafter, Mr. Dharmender in his testimony as PW-1 recorded on
28.06.2016, deposed about the entire incident of the two accused, Mr.
Gaurav Sharma and Mr. Vikram Puri, having misbehaved with him and
having dragged him down to the basement, essentially as was stated by him
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By:VIKAS ARORA
Signing Date:06.03.2025
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in his statement before the Police. However, he further deposed that
“meanwhile bade malik Chaswinder Singh also came and he also started
beating me". He further deposed that he requested them all with folded
hands to allow him to go outside the Company premises but “bade malik
Chaswinder Singh kicked me and said that until you will not sign the leave
form you will not be allowed to leave the company premises then I under
compulsion signed the blank paper.”
16. This witness was duly cross-examined on behalf of the two accused
and in his cross-examination, he further reiterated “…Vol. Bade Sardarji has
also beaten me and his name was not written.” He further deposed that he
had informed the Police Constable in the Police Station about the entire
incident, but he does not know who recorded his statement as he was an
illiterate man. He further volunteered that “Bade Sardarji” was not arrested.
After obtaining his signatures, he was sent away by the Police.
17. An Application under Section 319 Cr.P.C. dated 21.01.2017 was filed
on behalf of the Complainant, which was allowed vide the impugned Order
dated 21.01.2017, by the learned ACMM. A Revision Petition which was
filed to challenge this Order was dismissed by the learned ASJ on
08.09.2017.
18. To consider the grounds of challenge of the Order under Section 319
Cr.P.C., it would be pertinent to refer to the scope of Section 319 Cr.P.C.
19. The Apex Court in the Constitution Bench Judgement in Hardeep
Singh vs. State of Punjab (supra), observed that though only a prima facie
case is to be considered from the evidence led before the Court but not
necessarily tested on the anvil of cross-examination, it requires much
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stronger evidence than mere probability of his complicity. It is, therefore,
evident that the power under Section 319 Cr.P.C. is a discretionary and an
extraordinary power which must be exercised sparingly and only in those
cases where the circumstances of the case so warrant. It must not be
exercised because the Magistrate or the Sessions Judge is of the opinion that
some other person may be guilty of committing that offence. It is only where
strong and cogent evidence occurs against a person from the evidence led
before the Court that such power should be exercised and that too, not in a
casual or a cavalier manner.
20. It was further observed that though the evidence led before the Court
necessarily is required to be tested on the anvil of cross-examination, but 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. It was
further observed that 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 can be convicted.” Therefore, there is no scope for the
Court to act under Section 319 CrPC to form any opinion as to the guilt of
the accused.
21. This Judgment has been followed in Labhuji Amarjit Thakor vs. State
of Gujarat, 2019 (12) SCC 644. Likewise, the test laid down in the case of
Hardeep Singh (supra), was reiterated by the Apex Court in the case of
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Sagar vs. State of Uttar Pradesh, (2022) 6 SCC 389.
22. From the aforesaid law, it can be inferred that in order to exercise the
powers under Section 319 Cr.P.C., to summon any person as an accused
during the recording of evidence, the test is that it should be exercised with
due caution and only when there is something more than prima facie case to
justify such summoning.
23. Applying these tests, in the present case what emerges significantly is
that the Complainant, Mr. Dharmender after his alleged assault by the
Company Supervisor and Manager, namely, Mr. Gaurav Sharma and Mr.
Vikram Puri left the Company premises and went straight to the Police
Station to lodge his Complaint wherein he was categorical in defining the
role of two accused persons. He even mentioned that both the accused had
told him to stop “Chhotey Sardarji” and to slap him as had been instructed
by “Bade Sardarji”. Therefore, to say that he was not conscious or aware of
the averments being made in the Complaint or that he was not aware of the
contents of his Complaint is not borne out from the record. He categorically
stated that the two accused claimed to convey the instructions allegedly
given by “Bade Sardarji”. His statement was clear about having been beaten
up by the two accused.
24. As has been rightly pointed out by the learned Senior Advocate on
behalf of the Petitioner, Mr. Chaswinder Singh that a subsequent statement
of the Complainant under Section 161 Cr.P.C. was recorded on the same day
i.e. 23.06.2014, when the FIR was registered, wherein he stated that the Site
Plan has been prepared in his presence and that the two accused were
arrested and their Personal Search conducted in his presence. Pertinently,
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By:VIKAS ARORA
Signing Date:06.03.2025
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Site Plan as well as the Arrest Memo and the Personal Search Memo of the
two accused, bear his signatures. For him to say now that he was not aware
of no case being registered against Mr. Chaswinder Singh, is clearly
motivated and an afterthought.
25. The next aspect which needs emphasise is that while in the testimony,
he had deposed that he got to know about non-arraigning of Mr. Chaswinder
Singh as an accused at the time of his testimony, but in the Application
under Section 319 Cr.P.C., it was stated that he became aware of this fact at
the time of filing of the Charge-Sheet. Such contradictory explanations
clearly reflects that his testimony about the alleged role of Mr. Chanswinder
Singh, is nothing but an after-thought.
26. Pertinently, Complainant is the Security Guard posted in the premises
of the Company of the Petitioner and was well aware of the identity of
“Bade Sardarji” i.e. Mr. Chanswinder Singh as well as of “Chhotey
Sardarji” i.e. Mr. Eshwinder Singh and he had concertedly refused to act
against Chhotey Sardarji when told to do so by the two accused persons.
Therefore, for him to claim that he was not aware of the contents of his
Complaint, is evidently motivated. Though it may be putting it strongly, but
it is a case where the Complainant despite being a Security Guard doing his
duty diligently had refused to be a party to the disputes between the two
brothers and had the courage to approach the Police immediately after the
incident, but unfortunately, is being manipulated by one brother to settle
scores with the other brother; such misuse of Section 319 Cr.P.C. cannot be
permitted.
27. To justify summoning of an accused under Section 319 Cr.P.C., there
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By:VIKAS ARORA
Signing Date:06.03.2025
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has to be strong and cogent evidence against the persons from the evidence
led before the Court and from the material available on record. As has
already been discussed, it is evident that the allegations in respect of the
Petitioner, are an afterthought and did not find any mention either in the
Complaint or the Statement under Section 161 Cr.P.C. or even at the stage
of filing of the Charge-Sheet; clearly the resort to Application under Section
319 Cr.P.C. is only with ulterior motives and without there being any strong
or cogent evidence against the Petitioner.
28. Consequently, the impugned Order of summoning under Section 319
Cr.P.C. against the Petitioner is hereby set aside.
29. The Petition is disposed of accordingly. Pending Application, if any,
also stands disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
MARCH, 04, 2025/RS
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