IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 61 of 2011 (O&M) Date of Decision: January 27, 2011 Ram Singh @ Lilla. …Petitioner Versus State of Haryana and others. … Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. S.K. Garg Narwana, Advocate, for the petitioner. Alok Singh, J. (Oral) Complainant has invoked revisional jurisdiction of this Court, assailing the order dated 11.12.2010 passed by learned Additional Sessions Judge, Jind, in Sessions Case No.26 of 22.09.2010, pursuant to F.I.R. No. 146 dated 26.06.2010, under Sections 148, 302, 323, 201 and 506/149 of the Indian Penal Code, registered at Police Station Uchana, thereby rejecting the application moved under Section 319 of the Code of Criminal Procedure by CRR 61 of 2011 Public Prosecutor to summon Hari Kesh son of Jai Singh @ Bhura, Dalbir son of Gaje Singh, Randhir son of Gaje Singh, Pala @ Harpal son of Jai Singh @ Bhura, Shanti wife of Gaje Singh, Kamla wife of Krishan and Roshan son of Randhir. The brief facts of the present case are that one Lilla @ Ram Singh son of Kapura, has lodged an F.I.R. No. 146 dated 26.06.2010 with the Police Station Uchana, District Jind, against the certain persons named in the F.I.R. including persons sought to be summoned as an additional accused for the murder of his own eldest brother Ram Niwas @ Niwasa. After the F.I.R., the matter was thoroughly investigated and ultimately, police has filed challan against ten accused i.e. Gaja son of Jawala Ram, Krishan son of Bhura @ Jai Singh, Sushil @ Sindha son of Harkesh, Sinda @ Surinder son of Gaje Singh, Sandeep son of Harkesh, Ved Parkash @ Ved son of Jai Singh, Bala Devi wife of Harkesh, Santosh Devi wife of Harpal, Sewa Devi wife of Dalbir and Isho Devi wife of Shamsher, while mentioning the name of the persons sought to be summoned as an additional accused in column no.2 of the challan stating that their involvement was not found during the investigation. Having received this challan, learned Magistrate has committed the case for the trial to the learned Sessions Judge. Learned Sessions Judge has 2 CRR 61 of 2011 framed charges against the accused against whom challan was presented by the police and thereafter, two witnesses i.e. the informant Lilla @ Ram Singh and Bhagta @ Ramesh, were examined on oath. Learned Prosecutor, after the examination of the two witnesses, has moved an application under Section 319 of the Code of Criminal Procedure to summon aforesaid seven persons to face trial as an additional accused in the matter. Learned Addl. Sessions Judge vide impugned order dated 11.12.2010 having placed reliance on the judgments in the case of Hukum Chand and another versus State of Haryana and another, reported in 2007(3) RCR (Criminal) 141, Ganesha versus State of Haryana and another, reported in 2007(2) RCR (Criminal) 633, Kailash versus State of Rajasthan and another, reported in 2008(1) CCJ 434 and Isham Singh and others versus State of Haryana, reported in 2004(2) RCR (Criminal) 279, has rejected the application of the prosecution, stating that both the witnesses i.e. Lilla @ Ram Singh, informant and Bhagta @ Ramesh have not attributed any specific role to the persons sought to be summoned to face trial as an additional accused, hence, there is no prima facie evidence to summon the additional accused to face trial. It has further been observed by the learned Additional Sessions Judge that persons sought to be summoned as an additional accused were found not to be involved in the 3 CRR 61 of 2011 incident during the investigation and statements of both the prosecution witnesses cannot be made basis to summon the persons as an additional accused because in the statements both the witnesses have not attributed any specific role to the persons sought to be summoned to face the trial; Mere mentioning of the names by the witnesses will not give any right to the Court to summon the persons to face the trial as an additional accused. I have heard learned counsel for the revisionist- petitioner and have carefully perused the record available before me. Undisputedly, Gaja accused No.1 is facing trial. Now, prosecution wants to summon two other sons of Gaja, namely, Dalbir and Randhir to face the trial. As observed by the Court below, which is found to be correct by this Court after perusal of the statements of both the prosecution witnesses, no specific role is attributed to Dalbir and Randhir sons of main accused Gaja. Likewise, now prosecution wants to summon Hari Kesh and Pala @ Harpal, both the real brothers of accused No.2- Krishan. Likewise, prosecution wants to summon Shanti wife of accused No.1 – Gaja and Kamla wife of accused No.2 – Krishan and Roshan another relative of the accused to face the trial. This is not uncommon now a days that there is a tendency to implicate all the family members of the accused. 4 CRR 61 of 2011 Therefore, to summon other family members of the accused, the power under Section 319 of the Code must be exercised with great care, caution and very sparingly only when there is a strong prima facie evidence suggesting the involvement of the accused. Merely mentioning the name of the accused in the statements by the prosecution witnesses without assigning/attributing any specific role, would not be sufficient to ask the family members of the accused to face the trial as an additional accused, ignoring the opinion of the Investigating Officer who after thorough investigation had not found them involved in the incident. Hon’ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, reported in 2009(2) RCR (Criminal) 131, in paragraph Nos. 15 and 16 has observed as under:- “15. The ingredients of Section 319 are unambiguous and indicate that where in the course of 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 against such person for the offence he has committed. 16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be 5 CRR 61 of 2011 satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” Hon’ble Apex Court in the matter of Suman versus State of Rajasthan and another, reported in 2010(1) Criminal Court Cases, 269 (S.C.), in paragraph no.11 has held as under:- “11. Section 319 Cr.P.C. applies to all the Courts including the Sessions Court. It empowers the Court to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a summons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub-section (4) lays down that where the Court proceeds against any person under sub-section (1), the proceedings in respect of 6 CRR 61 of 2011 such person shall be commenced afresh and witnesses are reheard. A reading of the plain language of sub-section (1) of Section 319 Cr.P.C. makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the Court finds that such person has committed any offence for which he could be tried together with the other accused.” Having perused both the judgments as cited by the learned counsel for the petitioner, now, it is no more res integra that power under Section 319 Code of Criminal Procedure can be exercised by the Trial Court when Trial Court finds that there is a sufficient evidence against the persons sought to be summoned as an accused, prima facie proving their complicity in the offence and Trial Court finds from the material available on the record that such persons 7 CRR 61 of 2011 have also committed the offence and must be tried along with other accused already facing trial. In the opinion of this Court, since learned Trial Court has exercised judicial discretion after perusing entire material available on the record, this Court while exercising the revisional jurisdiction should not disturb the discretion exercised by the learned Court below. Moreover, I do not find any material to take contrary view to the view taken by the learned Court below. Dismissed. January 27, 2011 ( Alok Singh ) vkd Judge 8