Criminal Revision No.2343 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: November 06, 2008 Harmesh Singh ...Petitioner VERSUS State of Punjab ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.R.P.Dhir, Advocate, for the petitioner. ***** RANJIT SINGH, J. Sewa Singh and Harmesh Singh petitioner were shown in column No.2 after investigation. Upon examination of complainant Harbhajan Singh as a witness, prosecution moved an application to summon Sewa Singh and Harmesh Singh (petitioner) as an additional accused. Complainant Harbhajan Singh has now specifically stated that Sewa Singh was armed with gandasi and Harmesh Singh was armed with kirpan. He has further deposed that Sewa Singh gave gandasi blow and Harmesh Singh gave kirpan blow Criminal Revision No.2343 of 2008 (O&M) : 2 : to his son Makhan Singh, who received injuries and died at the spot. On this basis, Sewa Singh and Harmesh Singh have been summoned as an additional accused to face prosecution for an offence under Section 302 read with Section 34 IPC. Counsel for the petitioner contends that this was the same evidence which was taken into consideration by the investigating agency to find the petitioner innocent. He further contends that the petitioner has been summoned without the witness having been subjected to cross-examination. In support of his contention, the counsel for the petitioner has placed reliance on Mohd. Shafi v. Mohd.Rafiq and another, 2007(2) RCR (Criminal) 762. The aspect whether additional accused can be summoned before the cross-examination of the witness does not appear to have directly arisen in this case. This aspect of the case is considered in detail in Criminal Revision No.2126 of 2007. It has been held by this court as under:- “The ratio that can be culled out from the above observation of the Hon’ble Supreme Court is that no exception can be taken where the trial Court is of the view that the application should receive its consideration only after conclusion of the cross-examination. It is the discretion to be exercised by the trial Court and if the Court is of the view that such discretion should only be exercised after conclusion of cross-examination of a witness, obviously there can not be any exception taken to this approach. From this and the above observation of the Hon’ble Supreme Court, it would not be possible to Criminal Revision No.2343 of 2008 (O&M) : 3 : contend that any binding precedent is being set in this judgment that additional accused can only be summoned upon conclusion of the cross-examination of a witness. The High Court order was set-aside with the observation that no exception can be taken where the trial Court wishes to arrive at its satisfaction after the cross- examination is over.” In the case Rakesh and anr. Vs. State of Haryana, AIR 2001 SC 2521 has categorically held that it is difficult to hold the contention that term evidence as used in Section 319 Cr.P.C. would mean evidence which is tested by cross-examination. The Court further held that the question of testing the evidence by cross- examination would arise only after addition of the accused. The contention raised before the Hon’ble Supreme Court in the case of Rakesh (supra) was precisely to this effect, as can be seen from the following:- “Learned senior counsel Mr.Ranjit Kumar submitted that the High Court materially erred in dismissing the revision application filed by the appellants and submitted that the term `evidence’ mentioned in Section 319 in reference would mean examination-in-chief and cross examination of the witnesses. It is his contention that in a case where the name of the accused is mentioned in the FIR and after investigation in the report submitted by the Investigating Officer, the said person is not added as accused and the case is committed to the Sessions Court, before adding that person as an accused, the Criminal Revision No.2343 of 2008 (O&M) : 4 : Sessions Court ought to have permitted cross examination of the witnesses. He referred to halsbury’s Laws of India, Ist Edition, Volume 15, in paragraph 145.242, wherein it has been stated: “The mere statement of the plaintiff’s witnesses cannot constitute the plaintiff’s evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiff’s witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff’s evidence cannot be acted upon. (emphasis supplied). “ Referring to the case of Ranjit Singh Vs. State of Punjab, 1998 (4) RCR (Crl.) 552 (SC), the Supreme Court observed that Section 319 Cr.P.C. contemplates existence of some evidence appearing in the course of trial from where the Court can prima-facie conclude that the person arrayed before it is also involved in the commission of crime for which he can be tried with those already named by the police. In this case, the Hon’ble Supreme Court clarified that “of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers.” Having so observed, the Hon’ble Supreme Court held that it is difficult to accept the contention that evidence as used in Section 319 Cr.P.C. would mean evidence, which is tested by cross-examination. The finding in this regard is as under:- “Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term, Criminal Revision No.2343 of 2008 (O&M) : 5 : `evidence’ as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross- examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word “evidence” occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigation officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime.” Accordingly, contention raised by counsel for the petitioner to impugn the order can not be accepted. I am, thus, not inclined to interfere in the impugned order as apparently there is evidence which would satisfy the tests as laid down in Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr., 2000 (2) RCR (Criminal) 75, for summoning the petitioner as an additional accused. Dismissed. November 06, 2008 ( RANJIT SINGH ) ramesh JUDGE