IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Rev.1290 of 2007 DATE OF DECISION : SEPTEMBER 9, 2008 ISWAR SINGH @ ISHAR SINGH ETC. ....... PETITIONER(S) VERSUS STATE OF HARYANA .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr.SS Salar, Advocate, for the petitioner(s). Mr. Tarun Aggarwal, Sr.DAG, Haryana. AJAI LAMBA, J. (Oral) Challenge in this revision petition is to order dated 10.7.2007, passed by the Additional Chief Judicial Magistrate, Panchkula, whereby Ishwar Singh, Raghbir Singh, Daljir Singh and Jagdeep Singh have been summoned to stand trial while exercising jurisdiction under Section 319, Code of Criminal Procedure. On a perusal of the impugned order, I find that there is no discussion in regard to the relevant aspects of the case or the material required to be taken into account while exercising jurisdiction under Section 319, Code of Criminal Procedure. The impugned order is clearly non-speaking. It is not sufficient for the Court to merely say that “Keeping in view that though already two persons have been charge-sheeted in this Criminal Rev.1290 of 2007 2 case and statements of complainant have been recorded there have been specific allegations against four persons who have been kept in column no.2 by the Police, in the interest of justice, the said application filed by the prosecution is allowed and the above said persons be summoned for 16.10.2007”. The court is required to consider the reasons for showing the above named persons in column No.2 in the context of the evidence that has come on the record, requiring the court to summon them to stand trial. When an accused is summoned, to stand trial, it has serious implications for him. Jurisdiction under Section 319, Code of Criminal Procedure, is required to be exercised while taking into account the law laid down by this Court in Criminal Miscellaneous No.352-M of 2008 (Paramvir alias Happy v. State of Haryana) decided on 13.8.2008, in which various judgments of the the Hon'ble Supreme Court of India were considered. In the case of Paramvir alias Happy, it has been held as under:- “In Mohd. Shafi's case (supra), the following has held in paras 9 and 13:- “9. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983 (1) RCR (Crl.) 73 (SC) : 1983 (1) SCC 1, a Division Bench of this Court while holding that even if a person had not been sent for trial by the police, the trial court would be entitled to invoke its jurisdiction after taking evidence, stating; "19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or Criminal Rev.1290 of 2007 3 those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. (Emphasis supplied)” “13. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrived at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of cross- examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. (Emphasis supplied)” In Kailash's case (supra), the Hon'ble Supreme Court of India has held the following (in paras 10 and 11):- “10. In a reported decision in Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RCR (Criminal) 762 : 2007(2) RAJ 534 : [JT 2007(5) SC 562], to which one of us (Sinha, J.) was a party, this Court had observed in para 7 as under:- “Before, thus, a trial court seeks to take recourse Criminal Rev.1290 of 2007 4 to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the court concerned. It cannot be ipse dixit on the part of the court. Discretion in this behalf must be judicially exercised. It is incumbent that the court must arrive at its satisfaction in this behalf.” In the above case this Court referred to the decision reported in Municipal Corporation of Delhi v. Ram Krishan Rohtagi & Ors., 1983(1) RCR (Criminal) 73 : [(1983) 1 SCC 1] and highlighted the following remarks made in para 19 therein which are to the following effect: “19. ........ But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken........” 11. In Krishnappa v. State of Karnataka, 2004(4) RCR (Criminal) 678 : 2004(3) Apex Criminal 643: [(2004) 7 SCC 792] this Court, while relying on another reported decision in Michael Machado v. Central Bureau of Investigation, 2000(2) RCR (Criminal) 75 : [(2000)3 SCC 262] went on to hold that the power under Section 319, Cr.P.C. is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. The Court further observed : “...... a judicial exercise is called for, keeping a conspectus of the case, including the stage at Criminal Rev.1290 of 2007 5 which the trial has already proceeded with with the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence.” The Court further observed : “The Court, while examining an application under Section 319 Cr.P.C., has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 Cr.P.C., all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.” The gist of what has been declared by the Hon'ble Supreme Court of India is that the evidence produced by the prosecution must satisfy the court that the other accused or those who have not been arrayed as accused have committed the offence. It must be made to appear to the court concerned that the person who is not facing trial has committed an offence. The discretion in this behalf must be judicially exercised only after the court records its satisfaction. There must exist a possibility that the accused so summoned, in all likelihood, would be convicted. This discretionary power should be exercised only to achieve criminal justice and the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. It is not the compelling duty of the court to proceed against other persons. For the exercise of discretion under Section 319, Code of Criminal Procedure, all relevant factors need to be kept in view and the order is not required to be made mechanically merely on the ground that some Criminal Rev.1290 of 2007 6 evidence had come on record implicating the person sought to be added as an accused. The power conferred in Court under Section 319 of the Code, should be used very sparingly and only if compelling circumstances exist for taking cognizance against other person against whom action has not been taken. The Scheme of the Code, incorporated in Chapter XII provides “INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE” as the heading. It begins with Section 154 of the Code, with the registration of a case and concludes at Section 173 of the Code, regarding the completion of investigation. Section 154 of the Code provides for the registration of FIR, followed by various powers and steps of investigation in cognizable and non- cognizable offences and the examination of witnesses, remanding of accused etc. Section 169 of the Code provides the discharge of the accused if evidence is deficient. Section 170 of the Code provides for sending the case to Magistrate when the evidence is sufficient and that is followed by Section 173 of the Code . Section 173(2) of the Code provides that all the particulars indicated in the provision be given. In this way the Report under Section 173 of the Code is conclusion of the investigation and the same is termed as 'final report' or 'challan'. Thus, the investigation is conducted and concluded as per the provisions contained in Chapter XII of the Code and is in discharge of statutory duties of the Investigating Agency. At this stage, the material available on record i.e. the documents accompanying the final report under Section 173 of the Code, are to be prima facie evaluated under Section 228 of the Code at the time of framing charge in Sessions trial cases, as to whether any case is made out or not. Only then the Public Prosecutor is called upon to enter into prosecution evidence. This material is not to be rebutted by defence evidence at the stage of charge as report under Criminal Rev.1290 of 2007 7 Section 173 of the Code, accompanied by the documents, is enough. The conclusion of Report under Section 173 of the Code is sufficient for the court to consider framing of charge. But for provisions of Section 319 of the Code, this is not even relevant. Therefore, the power of Section 319 of the Code is an extraordinary power, to be sparingly used under compelling circumstances. It is to be used only when there is sufficient material brought on record to summon the persons not facing trial. Merely on the statement of the complainant who had almost reproduced his FIR version the powers under Section 319 of the Code should not be ordinarily exercised. It is the duty of the police authorities to give complete details of reasons in the Report under Section 173 of the Code as to why a particular person is not being challaned and on the basis of which evidence. Even the Punjab Police Rules provide in Para 25.17 (6) that Senior Police officers must supervise the investigation findings. This material can help the court to independently assess the material on the record while dealing with application under Section 319 of the Code. With the rise in cases of dowry and dowry deaths etc. as well as group clashes, political rivalries etc. the naming of innocent including women, old, infant, children has become a glaring reality. During the investigations if they are found to be innocent, then the provisions of Section 319 of the Code should not be allowed to be used as tools by unscrupulous complainants to settle their personal scores. The process of law cannot be allowed to be abused. The aim must be to achieve criminal justice. The court is required to consider that one opinion of innocence of the person sought to be added as an accused, is already there in the report under Section 173 of the Code. The opinion has been recorded after investigation by the Criminal Rev.1290 of 2007 8 police in discharge of its statutory functions under Chapter XII of the Code. The opinion of innocence, thus, recorded can only be doubted to achieve criminal justice.” Learned counsel for the respondent-State has not been able to justify the impugned order. In view of the above, the petition is allowed. Impugned order dated 10.7.2007 is set aside and the matter is remanded back to Additional Chief Judicial Magistrate, Panchkula, for reconsideration of the issue, in the light of the judgment rendered in the case of Paramvir alias Happy. The parties, through their counsel, are directed to put in appearance before the Additional Chief Judicial Magistrate, Panchkula,on 22.9.2008. The issue of summoning the above named persons would be considered within 30 days thereof. September 9, 2008 ( AJAI LAMBA ) Kang JUDGE