IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No.1499 of 2011 (O & M) Date of Decision: September 14, 2011 Bachittar Singh .....PETITIONER(S) VERSUS State of Punjab .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. S.P.S. Sidhu, Advocate, for the petitioner. Ms. Rajni Gupta, Additional Advocate General, Punjab. Mr. Rajesh Batheja, Advocate, for the complainant. . . . AJAI LAMBA, J (Oral) 1. This revision petition challenges order dated 6.7.2011 passed by the Trial Court in a trial for commission of offence under Sections 307, 325, 34 IPC. Vide the impugned order, while exercising jurisdiction under Section 319 Cr.P.C., petitioner, Bachittar Singh son of Mukhtiar Singh, has been summoned as additional accused to stand trial. Criminal Revision No.1499 of 2011 [2] 2. The name of petitioner, Bachittar Singh, finds mention in the FIR. It has been alleged that Bachittar Singh, empty handed, was standing at a distance of 1 killa/ acre and raised lalkara not to spare the complainant for making katcha path to pacca one, and thereafter, co-accused inflicted injuries. 3. After investigation under Chapter XII of the Code of Criminal Procedure, it was found that said Bachittar Singh was not involved in commission of offence and therefore, has been shown as innocent. 4. Injuries have been caused by Gurpreet Singh (armed with Gandasi), Gurpreet Singh son of Darbara Singh (armed with iron rod), Gurvinder Singh (armed with Gandasi) and Jagtar Singh (armed with baseball bat). 5. Petitioner, Bachittar Singh has been ordered to be summoned to stand trial as additional accused. A lalkara from a distance of 1 killa/acre is the main attribution to Bachittar Singh. In such circumstances, I do not find that the impugned order has been passed on the basis of relevant consideration and material. 6. This Court, while dealing with the matter of ‘Ranjit Singh vs. State of Haryana & others’ Criminal Revision No.2124 of 2011, decided on 19.9.2011, while relying on a judgment rendered by the Hon’ble Supreme Court of India, reported as (2009) 3 RCR (Criminal) 388, ‘Sarabjit Singh & another vs. State Criminal Revision No.1499 of 2011 [3] of Punjab’, has held in the following terms:- “6. In Sarabjit Singh’s case (supra), 10 persons were already facing trial before the Sessions Court. Balwant Singh was examined as PW-1 and he repeated the allegations contained in the FIR. Relying only on/or on the basis of said statement made by PW-1, an application for summoning the appellant, in terms of Section 319 Cr.P.C., was filed which was allowed by the Sessions Judge. The High Court, in revisional jurisdiction, upheld the order passed by the Sessions Judge. It is in that background that the entire law on the issue was considered by the Hon’ble Supreme Court of India. The Hon’ble Supreme Court of India allowed the appeals and set aside the impugned judgment, in the result while disallowing the application for summoning under Section 319 Cr.P.C. 7. The following (relevant portion) has been held in the case of Sarabjit Singh (supra):- “16. We have noticed hereinbefore that Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RCR (Criminal) 762 : 2007(2) RAJ 534 : [2007(5) SCALE 611] has been explained in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhand, 2009(1) RCR (Criminal) 504 : 2009(1) RAJ 163 : [2008(16) SCALE 276] holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence brought before it and not on the basis of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi v. Ram Kishan Rastogi, 1983(1) RCR (Criminal) 73 : [(1983) 1 SCC 1] is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. 17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be Criminal Revision No.1499 of 2011 [4] such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr., 2007(2) RCR (Criminal) 1014: 2007(3) RAJ 69: [JT 2007 (6) SC 460], this Court opined: "...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence" in Section 319 contemplates that evidence of witnesses given in Court..." An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). 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. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for Criminal Revision No.1499 of 2011 [5] sparingly exercise of jurisdiction, would not be satisfied. 19. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly and the matter is remitted to the learned Sessions Judge for consideration of the matter afresh. 20. The appeals are allowed with the aforementioned directions.” 8. Gist of the law as laid down by the Hon’ble Supreme Court of India is that the provision of Section 319 Cr.P.C., on a plain reading, provides that such an extra ordinary case has been made out, must appear to the Court. Before an additional accused can be summoned for standing trial, the nature of the evidence should be such it would make out grounds for exercise of extra ordinary power. The materials brought before the Court must also be such which would satisfy the Court that it is one of those cases where its jurisdiction should be exercised sparingly, only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. 9. An order under Section 319 Cr.P.C., therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate the other persons(s). 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. Such an evidence must be convincing one, at least for the purpose of exercise of extra ordinary jurisdiction. For the aforesaid purpose, the Courts are required to apply stringent tests; one of the tests being whether evidence on record is such it would reasonably lead to conviction of the persons sought to be summoned. 10. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the Court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Cr.P.C., the Court must consider the entire material on record to form an opinion that the evidence, if unrebutted, would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 Cr.P.C., is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extra ordinary case and Criminal Revision No.1499 of 2011 [6] (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.” 7. The Hon’ble Supreme Court of India has considered the scope of Section 319 Cr.P.C. in the case of Kailash vs. State of Rajasthan & another, 2008(2) RCR (Criminal) 200, in Para 9 (relevant portion) whereof, the following has been held:- “A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the ac- cused who are also being tried. The key words in this Section are "it appears from the evidence"...."any person"….."has committed any offence". It is not, there- fore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discre- tion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be cir- cumspect while exercising this power and would have to apply the caution which the language of the Section de- mands.” 8. The Trial Court is required to consider the parameters, as held by the Hon’ble Supreme Court of India as noticed above. Mere mention of name of a person as accused or reference to some material, is not sufficient to summon a person as additional accused. 9. I am of the considered opinion that material Criminal Revision No.1499 of 2011 [7] before the Trial Court regarding allegations of giving lalkara from a distance of 1 acre against Bachittar Singh is not sufficient to warrant passing of an order of summoning under Section 319 Cr.P.C. Accordingly, the petition is allowed. 10. Order dated 6.7.2011 passed by the Additional Sessions Judge, is hereby quashed. (AJAI LAMBA) September 14, 2011 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?