IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Miscellaneous No. M-24752 of 2010 Date of Decision: September 06, 2011 Harminder Singh @ Happy & others .....PETITIONER(S) VERSUS State of Punjab & another .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Rajesh K. Dadwal, Advocate, for the petitioners. Ms. Rajni Gupta, Additional Advocate General, Punjab. Mr. H.S. Thiara, Advocate, for respondent No.2. . . . AJAI LAMBA, J (Oral) 1. This petition filed under Section 482 Cr.P.C. challenges order dated 22.5.2009 (Annexure P-5) passed by the Judicial Magistrate Ist Class, Hoshiarpur, vide which an application filed on behalf of the prosecution under Section 319 Cr.P.C. has been allowed and the petitioners have been summoned to stand trial as additional accused for commission of offence under Sections Crl. Misc. No. M-24752 of 2010 [2] 341, 323 and 506 IPC. Petitioners also challenge order dated 22.7.2010 (Annexure P-6) passed by the Revisional Court. 2. Short contention of the learned counsel for the petitioners is that complainant-respondent No.2 (Madan Gopal Chadha) appeared as PW-1 during the course of trial and repeated the FIR story whereupon the impugned order has been passed. The consideration of the Courts below does not satisfy the test required for exercising jurisdiction under Section 319 Cr.P.C. 3. I have considered the contentions of the learned counsel. 4. Only examination-in-chief of the witness, Madan Gopal Chadha, who appeared as PW-1, was recorded whereafter application under Section 319 Cr.P.C. was filed that has been allowed. The Judicial Magistrate, in Para 3, has only considered the fact that PW-1, in Court, named the petitioners to be present at the spot. The petiotioners having raised lalkara alongwith accused Amarjit Singh, have prima facie committed the offence and are criminally liable. 5. The Revisional Court has upheld the order while saying that perusal of the record revealed that there are specific allegations of accusation against the accused, so, at this stage, it cannot be presumed that “the accused are innocent persons and have been falsely implicated in the present case.....” Crl. Misc. No. M-24752 of 2010 [3] 6. The scope of Section 319 has been considered by the Hon’ble Supreme Court of India in the case of Kailash vs. State of Rajasthan & another, 2008(2) RCR (Criminal) 200, in Para 9 (relevant portion) whereof, the following has been held:- “A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the ac- cused who are also being tried. The key words in this Section are "it appears from the evidence"...."any person"….."has committed any offence". It is not, there- fore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discre- tion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be cir- cumspect while exercising this power and would have to apply the caution which the language of the Section de- mands.” 7. While dealing with Criminal Revision No.2367 of 2010 titled ‘Kehar Singh & another vs. State of Haryana’, decided on 11.8.2011, on the issue involved in this petition, the following has been held:- “15. Be that as it may, investigation as required under Chapter XII of the Code of Criminal Procedure has been conducted in the case whereupon it has been found that the petitioners were not involved in the incident. Even on investigation, no incriminating material could be collected against the petitioners so as to conclude that the petitioners were involved, alongwith Gurvinder Singh, in causing injuries to the complainant side. Merely because no Crl. Misc. No. M-24752 of 2010 [4] material has been placed by the investigating agency on the challan papers (final report under Section 173 Cr.P.C) in evidence of the fact that petitioners are innocent and were not involved in the commission of offence, would not per-se allow a Court of law to draw a conclusion that the petitioners were also involved in commission of offence and therefore, be summoned as additional accused. 16. Process of investigation involves systematic inquiry into an alleged incident or transaction from its genesis till its conclusion, with a view to search out and examine the particulars about something hidden, which would include motive, manner in which the incident or transaction has taken place and involvement of the accused (directly or indirectly), in the said incident or transaction, with their exact and specific roles. 17. Informant or complainant makes a report in regard to a happening/incident/transaction which has taken place. On such report, the Investigating Agency undertakes investigation under Chapter XII, Code of Criminal Procedure, in a systematic manner. When needle of suspicion goes towards a particular person viz. the accused, his role is required to be investigated, in detail. However, the version of the complainant is one sided. The alleged accused might be innocent and might be in a position to establish his presence elsewhere or involvement of other accused, who might be the real players in the incident or transaction. 18. The incident or transaction is to be investigated in the context of the persons, who are involved in causing it. In such circumstances, it becomes imperative for the Investigating Agency to also look into the facts, as projected by the accused. An application given by the complainant might be tainted or driven out of selfish motive and might be de hors the true facts. Manifest injustice can be caused, in case, the version given out by the accused is not inquired or investigated. In such circumstances, it is as imperative to inquire and investigate the version given by the accused as is important and relevant to investigate the version given out by the complainant or informant. 19. Circumstances surrounding the incident or transaction would also play an important role. Medico- legal report, report received from the Forensic Science Laboratory, D.N.A. finger prints, etc. if relevant in the facts and circumstances of the case, would help the investigating agency to verify whether the complainant is telling the truth or version of the accused is more believable. So many instances have come to the notice of the Court wherein the complainant, after committing the offence, has gone to the police to make a complaint while indicating the needle of suspicion in other misleading direction or a complaint, with fabricated allegations, has been made to put pressure on the alleged accused so as to Crl. Misc. No. M-24752 of 2010 [5] settle a civil dispute. 20. Ideally, the investigating agency is required to clearly mention the incriminating material collected so as to show culpability of a particular accused in commission of offence. The said material might be on scientific basis, such as medico-legal report, report from Forensic Science Laboratory or Chemical Examiner or telephone record. The evidence might be by way of statement of witnesses recorded under Section 161 Cr.P.C. or photographs. 21. When a person is found innocent because of a plea of alibi or other circumstances showing his innocence, such circumstances are required to be depicted by material, by the investigating agency for perusal and consideration of the Court in the final report prepared under Section 173 Cr.P.C. It is as important for investigating agency to place on record the material showing innocence of a person against whom allegations might have been made by informant or complainant, as it is for the investigating agency to place material showing culpability of the real accused.” 8. Order vide which a person is asked to stand trial as an additional accused has serious implications for that person. As a consequence of such an order, the accused is required to face trial. 9. In the case in hand, after conducting investigation under Chapter XII of the Code of Criminal Procedure, the investigating agency did not find any incriminating material so as to record that the petitioners were involved in commission of offence as alleged by respondent No.2-complainant. The material indicating innocence of the petitioners would have been placed with the final report under Section 173 Cr.P.C., which has not been kept in mind by the Trial Court while considering the application under Section 319 Cr.P.C. The complainant appeared as a prosecution witness and repeated the FIR version/ story. Without allowing cross Crl. Misc. No. M-24752 of 2010 [6] examination of PW-1, the impugned order under Section 319 Cr.P.C. has been passed. If repetition of FIR case is to be accepted as gospel truth so as to summon persons as additional accused, the entire purpose of investigation would be lost. 10. Surely, considering the scope of such an order passed by Trial Court summoning a person as additional accused under Section 319 Cr.P.C., cannot be taken as casual as has been done in the case in hand. Such is the spirit of law as declared by the Hon’ble Supreme Court of India in the case of Kailash (supra), as extracted above. 11. The Supreme Court of India has held in categoric words that it should appear from the evidence that an offence has been committed by a person who is sought to be summoned as additional accused. The discretion vested under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person. The word appearing in Section 319 Cr.P.C., “it appears” are not to be read lightly. The Court is required to be circumspect while exercising this power and would have to apply caution which the language of the Section demands. In the case in hand, the Trial Court, without considering the scope of Section 319 Cr.P.C. in the perspective the Hon’ble Supreme Court of India has put, has summoned the petitioner as additional accused. Crl. Misc. No. M-24752 of 2010 [7] 12. In view of the above facts and circumstances of the case, the petition is allowed. Impugned order dated 22.5.2009 (Annexure P-5) and order dated 22.7.2010 (Annexure P-6) are quashed. 13. It is made clear that prosecution would be at liberty to file an application under Section 319 Cr.P.C. if at a later stage, some evidence is brought to Court that indicates prima facie commission of offence by the petitioners. (AJAI LAMBA) September 06, 2011 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?