Suspecting Collusion With Police, High Court Upholds Section 319 CrPC Order To Add Accused Declared Innocent By Nuh DSP

Observing that, "Police authorities relied upon unknown ghost respectable members of the society so as to declare the petitioner as innocent," the Punjab & Haryana High Court has upheld the order to array a man as an accused in a murder case who was exonerated in police investigation by Nuh DSP.

Justice Deepak Gupta observed, "It is very surprising that despite the petitioner being specifically named as one of the assailants, who was armed with gun and despite the fact that there was eye-witness account in the form of statements of at least Samina w/o Sabbir, & Nishar recorded under Section 161 Cr.P.C., the DSP, Nuh chose to declare the petitioner as innocent."

The Court further added that the police authorities at their own, disbelieved the version of eye-witnesses regarding the role of the petitioner and relied upon unknown ghost respectable members of the society so as to declare the petitioner as innocent, clearly indicating the collusion of the police with the petitioner.

These observations were made while hearing the pre-arrest bail plea and petition challenging summoning order under Section 319 CrPC of a murder accused, who was booked under Sections 148, 149, 323, 341, 307, 506, 302/120-B of the IPC and Section 25 of Arms Act in Nuh District in 2018.

According to Prosecution the complainant had stated in FIR that the petitioner Shamshuddin, gave gun shots to several persons and resultantly two of the injured persons died.

During the investigation the police declared Shamshuddin innocent, however after presentation of the challan under Section 173 Cr.P.C. and the commitment proceedings, the trial commenced . After recording statement of witnesses, application under Section 319 Cr.P.C. was moved by the complainant, which was duly forwarded by the Public Prosecutor, so as to summon petitioner  Shamshuddin and some others to face the trial.

Challenging the summoning order, the counsel for the petitioner contended that the petitioner and his wife were found innocent during investigation made by DSP Tauru and no specific role has been attributed to the petitioner. A Similar plea was submitted for the anticipatory bail application application.

Test Of Additional Prosecution

Considering the submission, the Court referred to landmark decision on additional prosecution of Apex Court in Hardeep Singh Vs. State of Punjab, 2014 in which the Court said, "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.

Reliance was also placed upon Babubhai Bhimabhai Bokhiria and Another v. State of Gujarat and others, [2014 (2) RCR (Criminal) (SC) 915] in which the Court said, "though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher.''

The Court further referred to Sagar Vs. State of UP & Another, Supreme Court, 2022 wherein the Court referred to Hardeep Singh’s case (supra) and held that crucial test, which has to be applied, is one which is more than a 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.

The Court noted that it is specifically mentioned in the FIR that the petitioner was armed with gun and gave numerous gun shots.

In the light of the above, the Court observed that there is prima facie case against the petitioner so as to face trial as an additional accused under Section 319 Cr.P.C.

Complete Investigation Is No Ground To Grant Pre-Arrest Bail

With respect to anticipatory bail, the Court highlighted the role of the petitioner in the crime, who is specifically attributed to have given gunshot injury resulting in the death of  one Sunny and also having caused gunshot injuries to another victim, and the gravity of the offence. Therefore, it opined that the case to is not fit for granting anticipatory bail, "even if the petitioner has been summoned under Section 319 Cr.P.C."

While dismissing the plea, the Court said, "Simply because investigation is complete or petitioner is not required for custodial interrogation, cannot in itself be a ground to grant him anticipatory bail."

Counsel for the petitioner: Advocates R.N. Lohan with Anas Ahmed

Citation: 2023 LiveLaw (PH) 217

Case Title: Samsu @ Shamshuddin v. State of Haryana

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