CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 04, 2011 Ibrahim and another .....Petitioners VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. M. S. Rakkar, Sr.Advocate with Mr. H. S. Baath, Advocate, for the petitioners. Mr. Saurabh Mohunta, DAG, Haryana, for the State. **** RANJIT SINGH, J. This order will dispose of two Criminal Revision Nos.42 of 2010 (Ibrahim and another Vs. State of Haryana) and 398 of 2010 (Nabba Vs. State of Haryana). Aggrieved against the order passed by Addl.Sessions Judge, Gurgaon to summon the petitioners as additional accused under Section 319 Cr.P.C., they have filed the present petition to challenge that order. Petitioner Nabha, who has also been summoned, has CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 2 }: impugned this order through Criminal Revision No.398 of 2010, which is under challenge on identical grounds. These petitions are being disposed of through this common order. Akbar, Isa and Gafoor are the three accused persons facing prosecution for an offence under Section 307 IPC. During the course of their trial, the prosecution moved an application for summoning Nabha, Shokeeen, Reshmi, Kayuum, Ibrahim, Sayra, Asmina and Arshida as additional accused. This application is moved on the basis of a statement made by Jamshed PW1 and Ashu PW4. It is also urged that the petitioners had also been named in the FIR and in the statements of the witnesses recorded under Section 161 Cr.P.C. Prayer, thus, is made to summon these petitioners as additional accused. This application filed by the prosecution was resisted by the petitioners. It is urged that this evidence would not make out a case either prima-facie against them or for their prospect of conviction to summon the petitioners as additional accused. It is also stated that in the FIR names of these petitioners except Nabha are not mentioned. Even in the statement of Jamshed recorded under Section 161 Cr.P.C, names of the petitioners are not so disclosed. Plea further is that it would be very difficult for complainant to remember or recollect the role of each of the fourteen accused, the complainant was being given these injuries. The petitioners would further urge that Nabha is alleged to have raised Lalkara only. It is stated that there was no need for him to give lalkara as the accused persons allegedly had come to the spot with intention to kill as is the case set up by the prosecution. The petitioners would lastly urge that CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 3 }: the provisions under Section 319 Cr.P.C. are extra-ordinary in nature and are to be used sparingly and must be so used when there are compelling reasons to do so and that these ought to be used when there is a reasonable prospect of conviction and not only when a particular person is just named during the course of evidence. In the context of the submissions made, it would be appropriate first to recapitulate the evidence which has now been led before the court, on the basis of which, the petitioners are sought to be summoned. As per Jamshed PW-1, one wooden cart (buggi) was parked in the property of Ashu. Around 7.00 A.M., Isha son of Chahat came and asked Ashu to remove the Buggi from that place which he declined. Isha called Ibbar son of Chahat, Aslam son of Ibbar, Reshmi son of Ibbar, Ayub son of Chahat, Isa son of Chahat, Saira wife of Isa, Shokeen son of Fajru, Jaicum son of Fajru, Asmina daughter of Fajra, Arshida daughter of Fajru, Nabba son of Subhan, Kapoor son of Bhuru, Akbar son of Bhuru, Gaffur son of Bhuru, who came there armed with Lathi, pharsa and stones. As per PW-1, Ayub gave a pharsa blow on the head of Ashu and Gaffur gave a pharsa blow on the right arm, Akbar gave lathi blow on the chest of Ashu, Isa gave lathi blow which hit on the right eyebrow of Jumal, Ibrahim allegedly gave pharsa blow on the head of Jummal. Gaffur is also attributed pharsa blow from the reverse side on the head of Jummal, whereas Akbar gave lathi blow on the ribs of Jummal. Shokeen also gave lathi blow which Jummal warded of by raising his hands, then Shokeen is attributed a lathi blow on the left arm of Illiyas, Jaicum gave pharsa on the right ear of Illiyas, Aslam gave a CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 4 }: lathi blow on the left hand and Nabba gave lathi blow on the head of the witness. All other accused are also attributed specific roles in this manner. The witness was thoroughly cross-examined . Ashu has appeared as PW4 and has also got recorded his statement attributing specific roles to all the accused persons. This witness has also been cross-examined in detail. On the basis of this evidence, the application is filed for summoning the petitioners as additional accused. On the basis of this evidence, the trial court has summoned Nabba, Ibrahim and Reshmi as additional accused to stand trial in this case as the injuries attributed to them are corroborated by the MLRs of the injured persons. However, injuries attributed to Ashmina and Arshida and so also on the part of Saira are not found corroborated. So is the position in regard to Quyum. These persons have accordingly not been summoned. Mr.M.S.Rakkar, learned Senior counsel appearing for the petitioners submits that PW1 and PW4 have named these eight persons as accused for the first time before the court and these witnesses have been confronted with their previous statements recorded while they were cross-examined. Counsel would contend that their statements made before the court are tutored one, which are contradictory as well. Similarly, other discrepancies are also highlighted to urge that the discretion exercised by the court in summoning the three petitioners as additional accused is uncalled for and unjustified. In support, the counsel has made reference to a case of Kailash Vs. State of Rajasthan & Anr., AIR 2008 Supreme Court CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 5 }: 1564, where the Hon'ble Supreme Court has made reference to some improvements made by the witnesses while assigning role to additional accused sought to be summoned to come to a conclusion that there was no possibility of convicting such an additional accused. This was a case where the High Court had allowed the revision directing the trial court to re-hear the application filed by the prosecution under Section 319 Cr.P.C. by applying its judicious mind and to pass an appropriate order in accordance with law. The ratio in this case would not be attracted to the facts of the present case. High Court while passing this order had relied upon the observations made by the Sessions Court while recording acquittal of few of the persons facing trial. This was a case where during the pendency of revision, the trial was not stayed and had continued leading to acquittal of some of the accused and conviction of some. The High Court had passed this order on the conclusion of the trial, which the Hon'ble Supreme Court found to be irrelevant so far as the case of the appellant before the Hon'ble Supreme Court was concerned. It is noticed that this by itself is no reason to try him with the aid of Section 319 Cr.P.C. The Hon'ble Supreme Court has observed that High Court should have applied itself independently to the question as to whether there was any material in the evidence against him not only to connect the appellant but whether it was sufficient to justify the words of Section, i.e., “it appears that such person has committed the crime”. Finding that there was no effort in the judgment of the High Court to so find, the appeal was allowed on the ground that High Court had applied irrelevant considerations by merely relying upon the observations of the Sessions Judge when CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 6 }: commented upon the present appellant not being a party accused. This is not the position in the present case. The learned Senior counsel has then referred to Sarabjit Singh & Anr. Vs.State of Punjab & Anr., AIR 2009 Supreme Court 2792. It is observed in this case that before an additional accused can be summoned for standing trial, the nature of evidence should be such which would make out a ground for exercise of extra ordinary powers. It is further observed that order under Section 319 should not be passed only because the first informant or one of the witness seeks to implicate other person. Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. As per the Hon'ble Supreme Court, such an evidence must be convincing one at least for the purpose of exercise of extra ordinary jurisdiction. This stringent test as has been emphasized time over again is that the evidence on record should be such which would reasonably lead to conviction of a person sought to be summoned. As per the learned counsel, the additional accused should not be merely summoned because they have been named by the first informant in terms of the law laid down in Sarabjit Singh's case (supra). There would not be any dispute with this proposition of law, but this is not such a case where the petitioners have been summoned as an additional accused merely because they have been named by the first informant. The relevant test for summoning an additional accused by now is fairly well settled and defined. In CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 7 }: Michael Machado & Anr. Vs.Central Bureau of Investigation & Anr., 2000(2) R.C.R. (Criminal) 75, Hon'ble Supreme Court has has held as under:- “The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the courts must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused.” This Court after noticing various judgements i.e. Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors., 1983 (1) RCR (Crl.) 73 and Krishnappa Vs. State of Karnataka, 2004(7) JT 509, in Criminal Revision No.1605 of 2006 (Harbhajan Singh Vs. State of Punjab), decided on 14.2.2007, held as under: “The analysis of the judgment aforementioned would show that discretion regarding summoning a person as an additional accused is not to be exercised in routine. This should be exercised sparingly and when done should be CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 8 }: by passing a reasoned order. This Section leaves a discretionary power with the Court and is not to be exercised when some doubt is entertained but should be so done after reasonable circumstances emerge from the evidence already collected. It has also been held that there is no compelling duty on the court to proceed against any person. Suspicion alone is not sufficient to summon the accused and he should be so summoned when there is reasonable prospect of convicting him of the offence charged. As already noticed, Hon'ble Supreme Court has observed that power under this provision is to be exercised to advance the cause of criminal justice.” In my view, the trial court has considered this evidence given by the first informant and other witnesses in the light of other material available on record. The court has decided to summon the petitioners as additional accused only after looking for corroboration of their version which was available in the form of an medical evidence. Where the court did not find such corroboration, it declined the prayer of the prosecution to summon those persons as additional accused. It would, thus, show that the trial court has fairly applied itself to the law as well as the evidence to summon three of the petitioners as additional accused. The court would appear justified in forming an opinion that on the basis of evidence given by these two prosecution witnesses coupled with other evidence available on record, there may be a reasonable prospect of conviction of these petitioners and so has summoned these CRIMINAL REVISION NO.42 OF 2010 (O&M) :{ 9 }: petitioners as additional accused. The discretion has been justly and fairly exercised by the trial Court on the basis of a law and would not call for any interference. The petitions are dismissed. November 04, 2011 ( RANJIT SINGH ) ramesh JUDGE