Criminal Misc. No.M-30164 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-30164 of 2009 Date of Decision : 4th October, 2011 Gurdeep Singh .... Petitioner Versus State of Punjab and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL. Present : Mr. Yogesh Goel, Advocate for the petitioner. Mr. R. S. Rawat, Assistant Advocate General, Punjab. Respondent No.2-complainant has since died. * * * * L.N.MITTAL, J. (ORAL) Gurdeep Singh has filed this petition under Section 482 of the Code of Criminal Procedure (in short, Cr. P.C.), for quashing FIR No.42 dated 06.05.2003 (Annexure P-1) under Sections 353, 332, 341, 186 IPC registered at Police Station Samrala, along with all consequential proceedings and order dated 04.05.2004 Annexure P-4 passed by learned Sub-Divisional Judicial Magistrate, Samrala thereby summoning the petitioner as additional accused in exercise of power under Section 319 Cr.P.C. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that power under Section 319 Cr. P. C. to summon additional accused can be exercised only after framing of charge and recording of some evidence Criminal Misc. No.M-30164 of 2009 -2- during trial as held by Hon'ble Supreme Court in the case of Sarabjit Singh & another versus State of Punjab and another, 2009(3) RCR (Criminal), 388, but in the instant case, learned Magistrate passed impugned order Annexure P-4 on the basis of statements recorded under Section 161 Cr. P.C. during investigation and without recording any evidence in the Court during trial and, therefore, impugned order summoning the petitioner as additional accused is completely unsustainable. Learned State counsel could not contradict the aforesaid contention raised by counsel for the petitioner. Perusal of the impugned order Annexure P-4 reveals that learned Magistrate exercised power under Section 319 Cr. P.C. to summon the petitioner as additional accused. For this purpose, learned Magistrate relied on statements of witnesses recorded under Section 161 Cr. P.C. during investigation. No evidence was recorded by the trial Magistrate on the basis of which the petitioner could be summoned as additional accused under Section 319 Cr. P.C. It is evident from the judgment of Hon'ble Supreme Court in the case of Sarabjit Singh (supra) that power to summon a person as additional accused under Section 319 Cr. P.C. can be exercised only on the basis of fresh evidence brought before the Court and not on the basis of material collected during investigation. It was held that the word 'evidence' used in Section 319 Cr. P. C. contemplates evidence of witness in the Court. In the instant case, however, it is manifest from the impugned order Annexure P-4 that petitioner has been summoned as additional accused only on the basis of statements recorded under Section 161 Cr. P.C. during investigation and not on the basis of any evidence recorded by the Court. Consequently, impugned order Annexure P-4 is completely perverse and Criminal Misc. No.M-30164 of 2009 -3- illegal and, therefore, unsustainable. However, there is no ground to quash the impugned FIR. For the reasons aforesaid, the instant petition is allowed partly and impugned order Annexure P-4 passed by learned Sub-Divisional Judicial Magistrate, Samrala thereby summoning the petitioner as additional accused in exercise of power under Section 319 Cr. P.C. is set aside and quashed. However, nothing in this order shall effect the right of the prosecution to move fresh application under Section 319 Cr. P.C. at appropriate stage and nothing in this order shall prevent the learned trial Magistrate from passing appropriate order in accordance with law, if any such application is moved. ( L. N. MITTAL ) JUDGE 4th October, 2011 'raj'