HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No.: 60 of 2005. Reserved on: 15.5.2008. Decided on: 6.6.2008 Hardeep Singh Saini ………Petitioner. Versus Shiv Kumar and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.M.S. Guleria, Advocate. For respondent No.1: Mr.Ajay Sharma, Advocate. For respondent No.2: Mr.N.K. Thakur, Advocate. V.K. Ahuja, J.: This judgment shall dispose of a petition filed by the petitioner under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C. for quashing of the order passed by the learned Additional Chief Judicial Magistrate, Court No.1, Una, dated 12.7.2004, summoning the petitioner as an accused in a complaint pending before the learned trial Court. Reply was filed by respondent No.1. I have heard the learned counsel for the parties and have gone through the record of the case. _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Brief facts of the case are that a private complaint was filed by respondent No.1 as against respondents No.2 and 3 and the present petitioner under Sections 192, 196, 198, 463, 464, 466, 469, 471, 120-A read with Section 34 of the IPC. After recording the preliminary evidence, the learned trial Court came to the conclusion that no case was made out for summoning accused No.2 in that case, i.e. the present petitioner and vide order dated 8.1.1999, the learned trial Court proceeded to summon respondents No.2 and 3 only. Some evidence was recorded and subsequently on application filed under Section 319 Cr.P.C. by the complainant/respondent No.1, the learned trial Court impleaded the present petitioner as an accused. Against the said order, the petitioner filed the present petition after being unsuccessful before the learned Sessions Judge in a revision petition. The submissions made by the learned counsel for the petitioner were that no specific role has been attributed to the petitioner, who is practicing as an Advocate and there are only allegations against the petitioner that he may be involved in the fabrication of the certificate of military authorities produced by the other respondents in connivance with the petitioner in a writ petition pending before this Court. A reference was also made to the statement of PW-1, who stated that he had personal knowledge about the involvement of the petitioner and it was submitted that there is no definite evidence on record to summon the petitioner as an accused and as such the court had rightly not summoned the petitioner at an earlier stage and the order passed on the application suffers from an illegality and is liable to the quashed. On the other hand, the submissions made by the learned counsel for respondent No.1 were that there are no specific assertions in regard to exact role - 3 - played by the petitioner, but, prima facie, the case is to be seen which may not lead to ultimate conviction and as such the summoning order is a legal one and is not liable to be quashed. The learned counsel for the petitioner, in support of his submissions, had relied upon the decision of the apex court in Mohd.Shafi v. Mohd.Rafiq and Anr., 2007(3) Criminal Court Cases 211 (SC). A perusal of this decision shows that in that case also, the provisions of Section 319 of the Cr.P.C. were invoked to summon an additional accused, wherein it was observed by the apex Court as under: “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 arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross- examination of the said witness.” Coming to the facts of the present case, it is clear that the petitioner was not summoned earlier and there was no bar to his summoning at a subsequent stage, but a perusal of the order passed at the time of summoning does not show what specific evidence was on record which makes out a case for summoning of the petitioner as an accused. The learned trial Court had referred to only the powers of the court and had made observations that the certificate produced was fabricated by the accused persons, but on what basis the court had come to the conclusion that this evidence was sufficient to summon the petitioner has not been mentioned in the impugned order passed by the learned trial court. Therefore, it appears that the learned trial Court only proceeded on the assumption that the petitioner may be involved in fabrication of the forged - 4 - certificate alongwith other accused persons, but there is no specific evidence on record which weighed with the court in passing the impugned order which suffers from an illegality and is liable to be set aside. In view of the above discussion, the order passed by the learned trial Court summoning the petitioner is liable to be quashed which is quashed accordingly. The learned trial Court is required to proceed with the case on day to day basis by giving short dates, being an old case. However, this order does not prevent the learned trial Court from impleading the petitioner as an accused on a subsequent date if fresh specific evidence is produced during the trial of the case for summoning of the petitioner, but that must satisfy the test laid down by the apex court in the above mentioned decision. The petition is allowed accordingly. Parties to appear before the learned trial Court on 28.7.2008. (V.K. Ahuja), June 6, 2008 Judge. (TILAK)