IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.revision No. 109 of 2003. Judgment reserved on: 27.5.2008 Date of decision: 28.5.2008 Jarnail Singh …….Petitioner Vs. Paramjit Singh and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Anand Sharma, Advocate. For the Respondents : Mr. Baldev Singh, Advocate, for respondents No.1 to 10. Mr. A.K. Bansal, Addl. Advocate General, for respondent No.11. Kuldip Singh, Judge. This revision has been directed against the order dated 10.6.2003 passed by learned Sessions Judge, Bilaspur in Sessions trial No.30 of 1997, State of H.P. vs. Kuldeep Singh. 2. The facts in brief are that on 18.3.2003 Jarnail Singh filed an application under Section 319 Cr.P.C. for summoning Harpreet Singh, Swaran Singh, Harbans Singh Atwal and Gurbux Singh Atwal as accused in the case, in addition to six accused already facing trial in Sessions trial No.30-7/97 under Sections 436, 435, 427, 147, 149/34 IPC, pending in the Court of learned Sessions Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Judge, Bilaspur. It has been alleged that on the basis of statements of PW-3 Niranjan Kaur, PW-4 Jarnail Singh and complaint Ex.PW-4/A, prima facie case is made out against aforesaid four persons who also conspired and committed offence with others. Therefore, aforesaid four persons be summoned as accused in the case. The Public Prosecutor also filed an application dated 18.3.2003 under Section 319 Cr.P.C. for summoning Harpreet Singh, Swarn Singh, Harbans Singh Atwal and Gurbux Singh Atwal as accused in the case. The Public Prosecutor has also relied on the statements of PW-3 Niranjan Kaur, PW-4 Jarnail Singh and complaint Ex.PW-4/A for summoning aforesaid persons as accused in the case. The application filed by Public Prosecutor was contested by filing reply. The learned Sessions Judge dismissed the applications on 10.6.2003, which has been assailed in this revision. 3. I have heard Mr. Anand Sharma, learned counsel for the petitioner, Mr. Baldev Singh, learned counsel for respondents No.1 to 10 and Mr. A.K. Bansal, learned Addl. Advocate General for respondent No.11 and gone through the record. Mr. Anand Sharma, Advocate has submitted stated that the learned Sessions Judge has not considered the evidence on record whether case for summoning Harpreet Singh, Swarn Singh, Harbans Singh Atwal and Gurbux Singh Atwal as accused in the case is made out or not under section 319 Cr.P.C. The para-7 of the impugned order is as follows:- “The scrutiny of the record revealed that the local police had arraigned the accused persons No.1 …3… to 6 to face charges under Sections 147, 435, 436, and 427 I.P.C. before the Court of Sessions. The local police had not taken any action against the accused persons Swarn Singh, Harbans Singh and Gurbax Singh. As per the police investigation and statements under Section 161 Cr.P.C. of various witnesses, no offence appeared to have been committed by the accused persons Swarn Singh, Harbans Singh and Gurbax Singh. The complainant in his complaint had stated taking into consideration the facts and circumstances of the case, I find that the application under Section 319 Cr.P.C. moved by the Public Prosecutor and the complainant was liable to be dismissed. The complainant was free to institute fresh complaint against the accused persons sought to be added under Section 319 Cr.P.C. with such observation, the application under Section 319 Cr.P.C. of the complainant and the Public Prosecutor is dismissed” 4. The learned counsel for the petitioner has submitted that in the two applications under Section 319 of the Code, it has been alleged that on the basis of statements of PW-3 Niranjan Kaur, PW- 4 Jarnail Singh and complaint Ex.PW-4/A the case is made out for summoning aforesaid four persons as accused in the case. Sub- section (1 ) of Section 319 Cr.P.C. is as follows:- “Where , in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed …4… against such person for the offence which he appears to have committed”. The learned Sessions Judge has not recorded a finding that from the statements of PW-3 Niranjan Kaur, PW-4 Jarnail Singh and complaint Ex.PW-4/A whether a case for summoning aforesaid four persons as accused is made out or not. This was the only question which was to be decided by learned Sessions Judge in the two applications under Section 319 of the Code. The learned Sessions Judge has committed jurisdictional error in not considering the statements of PW-3 Niranjan Kaur, PW-4 Jarnail Singh and complaint Ex.PW-4/A while deciding two applications under Section 319 Cr.P.C. The learned counsel for respondents No.1 to 10 faced with this situation has submitted that in these circumstances, matter be sent back to learned Sessions Judge for fresh consideration of the applications under Section 319 of the Code filed by Jarnail Singh and the Public Prosecutor. 5. In view of above discussion, revision is allowed and order dated 10.6.2003 passed by learned Sessions Judge, Bilaspur in Sessions trial No,.30 of 1997 is set aside. The case is sent back to the learned Sessions Judge, Bilaspur with a direction to decide both the applications under Section 319 Cr.P.C. filed by Jarnail Singh and Public Prosecutor keeping in view the allegations in the applications and statements of PW-3 Niranjan Kaur, PW-4 Jarnail Singh and complaint Ex.PW-4/A relied by the applicants and other material on record. The case is quite old, the parties through their learned …5… counsel are directed to appear before the learned Sessions Judge, Bilaspur on 16.6.2008. The Registry is directed to send the record of the Court below immediately so as to reach before the date fixed. The learned Sessions Judge shall decide both the applications under Section 319 of the Code preferably before 31.7.2008. ( Kuldip Singh ) Judge. May 28, 2008 (sks) …6…