CRR-2009-2011 (O&M) [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR-2009-2011 (O&M) Date of decision:16.11.2011 Danish ...Petitioner Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. P.S.Sekhon, Advocate, for the petitioner. Mr. A.S.Rai, DAG, Punjab. ***** RAKESH KUMAR JAIN, J. This revision petition is directed against the order dated 19.02.2011 passed by the learned Additional Sessions Judge, Sangrur by which the application filed under Section 319 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] for summoning the petitioner as an additional accused, has been allowed. In a case registered vide FIR No.28 dated 28.05.2010, under Sections 363, 366-A, 376 and 506 IPC at Police Station City-I, Malerkotla, one Suab Khan son of Mohd. Shahid was sent up as an accused and the petitioner was kept in column no.2 in the challan. Although there were allegations against him that he had committed rape with Akabri daughter of Mohd. Sabbir but was found to be innocent during investigation. When Akabri was examined in camera proceedings as PW2, she categorically stated that the petitioner had raped her without her consent. She was cross-examined by the learned counsel for Suab Khan and after some length of cross-examination, her further cross- examination was deferred on the request of the learned defence counsel because learned counsel for the State had filed the application under Section 319 Cr.P.C. to summon the present petitioner as an additional CRR-2009-2011 (O&M) [ 2 ] :::::::: accused. The learned Trial Court, vide its order dated 19.02.2011, has allowed the application which made the petitioner aggrieved to file the present revision petition in which he has submitted that cross- examination of the PW2 is not complete; the petitioner is a juvenile and during investigation, he has been found to be innocent. In reply, learned State Counsel has submitted that the prosecutrix had not only named the petitioner as a rapist in the FIR but when she was examined on oath in Court in the camera proceedings, she had reiterated the allegation of rape against the petitioner. She had also pinpointed the place where the occurrence allegedly took place and could not be materially cross-examined to deny the involvement of the petitioner in this serious offence. I have heard learned counsel for the parties and perused the available record. In the case of Sarojben Ashwinkumar Shah Etc. v. State of Gujarat and others, 2011(3) RCR (Criminal) 852, while dealing with various cases with regard to Section 319 Cr.P.C., the Apex Court has observed as under: - “(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the Charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence CRR-2009-2011 (O&M) [ 3 ] :::::::: comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The court while exercising the power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and CRR-2009-2011 (O&M) [ 4 ] :::::::: the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319(4) that proceedings in respect of newly-added persons shall be commenced afresh from the beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.” It has been held that if the Court, during inquiry or trial, finds sufficient evidence indicating involvement of a person in the offence as an accused, then he can be summoned and not otherwise and the word `evidence' in Section 319 Cr.P.C. contemplates the evidence of witness given in Court in the inquiry or trial and does not relate to the materials available in the charge-sheet or in the case diary. In the present case, the prosecutrix Akabri has not changed her stand that she alongwith Sabina have been raped by co-accused Suab Khan and the petitioner. At this stage, the said statements cannot be disbelieved as the offence was committed in the closed doors. In view of the aforesaid discussion, I do not find any error in the order of the learned Trial Court while allowing the application filed under Section 319 of Cr.P.C. and as such, the present revision petition is hereby dismissed. November 16, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE