IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revn. No. 2540 of 2010 (O&M) DATE OF DECISION: 16.09.2010 Sukhbir Singh ..........Petitioner Versus Kuldeep Singh & Ors. ..........Respondents BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Inderjit Singh Brar, Advocate for the petitioner. **** DAYA CHAUDHARY, J. Crl. Misc. No. 48764 of 2010 Application is allowed as prayed for. Crl. Revn. No. 2540 of 2010 The present revision petition has been filed against order dated 22.7.2010 passed by Additional Sessions Judge (Fast Track Court), Bathinda, vide which an application filed by the prosecution under Section 319 Cr.P.C. has been dismissed. Learned counsel for the petitioner contends that the statements made by the injured witnesses with regard to role of Bahadur Sharma, Bal Mukand and Varinder Kumar have been ignored by the trial Court. Learned counsel further submits that specific allegations are there against the proposed accused persons in the complaint but his version has not been relied upon, whereas, inspite of contradictions and variation in their statements, the trial Court has relied upon the version of other party. Learned counsel for the petitioner has also relied upon the judgments of this Court in Paramjit Singh Vs. State of Punjab and another 2009 (1) RCR (Criminal) 732 and Mann Singh and others Vs. State of Punjab and another 2009 (2) RCR (Criminal) 289 in support of his contention. Crl. Revn. No. 2540 of 2010 [2] I have heard the arguments advanced by learned counsel for the petitioner and have also gone through the impugned order. In this case, an application under Section 319 Cr.P.C. was moved by the prosecution for summoning of the proposed accused but the same was dismissed on the ground that during investigation, proposed accused have been found innocent. The police has recorded the statements of Gurcharan Singh and Karnail Singh, whose fields are adjoining to the fields of accused, on 9.10.2009. According to them, on the date of occurrence, accused persons sought to be summoned, were present in their fields and were not present at the place of occurrence. In view of the aforesaid statements, no ground for summoning of alleged accused was made out. The trial Court has specifically mentioned that mere statement of complainant, ipso-facto, cannot be made the basis of summoning the proposed accused persons under Section 319 Cr.P.C. No new allegation has been levelled by the complainant, which was made the basis of passing of the summoning order. Since no ground was made out on the basis of fresh evidence for summoning of the proposed accused, the trial Court has dismissed the application. The statement of the complainant is merely a reiteration of his earlier statement, upon which case was investigated by the police and accused have been found innocent. This issue has been settled in number of cases. In case of Joginder Singh v. State of Punjab [1979[1 SCC 345, the Hon'ble Supreme Court has inter alia held that Court has power to add any person, against whom there appears during trial sufficient indication for his involvement in the offence, then summoning can be ordered. Similarly in Michael Machado v. Central Bureau of Investigation 2000(2) RCR (Crl.) 75 it has been held that Court must have reasonable satisfaction Crl. Revn. No. 2540 of 2010 [3] from the evidence led that other person has committed an offence and there is prospect of his conviction. Similarly, in Mohd.Shafi v. Mohd.Rafiq and aother 2007(2) R.C.R. (Criminal) 762, the Court had observed that such power can be exercised only if the Court is satisfied that the accused so summoned is in all likelihood would be convicted. In case of Hardeep Singh v. State of Punjab and others 2008 (4) RCR (Criminal) 947, the Hon'ble Supreme Court noticed all earlier judgments and had observed that test formulated in Mohd. Shafi's case substantially curtailed discretionary powers of the Court conferred under sub-section(1) of Section 319 Cr.P.C. The Court has accordingly found that matter requires fresh consideration and had referred the following two issues to a larger Bench. “(1) When the power under sub-section (1) of Section 319 Cr.P.C.of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete? (2) What is the test and what are the guidelines of exercising power under sub-section(1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted.? While referring the issues to the larger bench, the Hon'ble Supreme Court in the case of Hardeep Singh (supra) was of the view that the observations in Mohd. Shafi's case (supra) do not appear to be in consonance with the statutory provisions and the previous decisions of the Court. It has further observed that bare reading of sub-section (1) of Crl. Revn. No. 2540 of 2010 [4] Section 319 Cr.P.C. would leave no room of doubt what the section requires. The Section states, it must appear, to the Court from the evidence that any person not being the accused has committed an offence for which such persons should be tried along with other accused.” In another recent decision in the case of Rajendra Singh v. State of U.P. and another 2007(3) RCR (Criminal) 1021, one Hon'ble Judge of the Division Bench while agreeing with the reasoning given in the case had spoken his mind in regard to Section 319 Cr.P.C. The learned Judge has emphasised the word “appears” used in the section to say that Court need not be satisfied that the person has committed an offence and it need only appear to it that he has committed an offence. In view of the facts and the law, the legislature has left discretion to the trial Court to summon or not to summon additional accused while exercising power under Section 319 Cr.P.C. The Court has been given judicial discretion which is to be exercised by the Court on the basis of law and the evidence available at that time. The exercise of discretion under this Section undoubtedly a judicial discretion and it is the trial Court deciding such an application which has to take a decision on the basis of law and evidence available at this stage. Even from the plain language of Section 319 Cr.P.C., it can be said that it is an evidence and not a statement which is to be given primacy. The observations made by the Hon'ble Supreme Court in case of Y.Saraba Reddy v. Puthur Rami Reddy and another 2007(2) RCR (Criminal) 1014 are as under: “ If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Crl. Revn. No. 2540 of 2010 [5] Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code, it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is unsustainable.” Each case is to be decided on the basis of facts and an authority has to be understood in the context of facts based on which the observations therein are made. Every judgment must be read as applicable to the particular facts and as such the judgments relied upon by the learned counsel for the petitioner cannot be made applicable in the present case. In view of the facts of the present case as well as the law positon, no ground is made out to interfere in the summoning order. The petition being devoid of any merit is hereby dismissed. September 16, 2010 (DAYA CHAUDHARY) raghav JUDGE