IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No. 416 of 2009 Date of Decision : August 21, 2009 Lila son of Dharampal .... Petitioner Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. R.A.Sheoran, Advocate for the petitioner. Mr. Yash Pal Malik, AAG, Haryana. Mr. V.S.Punia, Advocate, for the complainant. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) In the present petition, the challenge is to the order dated 19.01.2009 passed by the Additional Sessions Judge-III, Bhiwani, vide which the petitioner, on an application moved under Section 319 Cr.P.C., has been summoned as an additional accused. Counsel for the petitioner contends that although the name of the petitioner figures in the FIR as well as in the statement under Section 161 Cr.P.C. but still when the challan was presented by the investigating agency, he was found innocent and was shown in Column No. 2. Thereafter, during the trial, the charge was framed, there again the Crl. Revision No. 416 of 2009 -2- petitioner did not figure. When the statement of prosecution was being recorded, one Krishan son of Bhagwan Singh-complainant appeared before the trial Court as PW-1, wherein he stated that the petitioner was one of the persons, who had raised lalkara to the effect that the enemy has come and Manoj should fire at him. On this, Manoj had fired a shot, which hit his nephew, namely, Sandeep (deceased) in the right groin area. Thereafter, two-three shots were also fired. Relevant portion of the statement given by PW-1 reads as follows:- “ Stated that on 17.12.2007, at about 8.30 P.M., I along with my nephew Sandeep were going to see Surender towards shop of Naresh, which is situated near Govt. School. When we reached near the shop, then all of a sudden, accused Manoj son of Dharampal, having pistol, Kala son of Kapoor Singh, Leela son of Dharampal and Kuldeep son of Dharambir, all residents of Village Saunf came there. They gave a lalkara to the effect that enemy had come and you (Manoj) fire at. Whereupon, Manoj fired a shot which hit my nephew in the right groin area. Two-three shots were fired. We ran towards the shop and entered in the same. We raised commotion and the accused also gave a lalkara that if today you saved, we will kill you later on. The motive for firing was that criminal cases were going on between us. My nephew became unconscious and died thereafter. Out of the four assailants, only three are present and one Leela son of Dharampal is not present in the Court today. My statement Ex. PA was recorded by the police and the same bears my signatures at point A.” He contends that these very assertions were available before the prosecuting agency, which have now been reiterated by the Crl. Revision No. 416 of 2009 -3- complainant and that being so, it is not a new evidence, which could have been taken into consideration by the trial Court while exercising its powers under Section 319 Cr.P.C. He contends that mere reiteration of the same facts without including anything more, which has been laid down in advance at the stage of investigation, cannot be a ground for exercising the powers under Section 319 Cr.P.C. for summoning a person as an additional accused. He, on this basis, submits that the order impugned deserves to be quashed. For this contention, he relies upon a judgment of this Court in the case of Ram Karan @ Rodu and another vs. State of Haryana, 2007 (2) RCR (Criminal) 205. He further places reliance upon a latest judgment of the Hon'ble Supreme Court in the case of Lal Suraj @ Suraj Singh and another vs. State of Jharkhand, 2009 (1) Recent Criminal Cases 702. The Hon'ble Supreme Court in the said judgment has stated that mere suspicion cannot be a ground for exercising the powers under Section 319 Cr.P.C. He refers to other judgments as well in support of this contention. On the other hand, counsel for the complainant vehemently argues that the name of the petitioner figures in the FIR and in the statement under Section 161 Cr.P.C. as well but the prosecution has chosen not to array him as an accused but has kept his name in Column No. 2. He submits that the statement of PW-1 Krishan Kumar is very clear and specific, where a specific role has been attributed to the petitioner and, therefore, exercise of powers under Section 319 Cr.P.C. by the trial Court is fully justified. I have heard the counsel for the parties and have gone through the records of the case. There can be no dispute about the contention and the submission of the counsel for the parties that it is the primary satisfaction of Crl. Revision No. 416 of 2009 -4- the trial Court while exercising its jurisdiction under Section 319 Cr.P.C. for summoning a person as an additional accused. However, the principle, as has been laid down by the Hon'ble Supreme Court and this Court clearly brings out a fine distinction where a person is to be called as an additional accused. The distinction primarily is with regard to the satisfaction of the Court, as mere suspicion cannot be made the basis for summoning a person as an additional accused. The material, which is already on record when the investigating agency submitted its report under Section 173 Cr.P.C. if that same assertion is reiterated during the trial it cannot be made the basis for summoning a person as an additional accused. What is required further is the satisfaction of the Court that the person is likely to be convicted on the basis of the said evidence. That being not the position in the present case as there is no other evidence except for the one which has been placed on record as statement of PW-1, on the basis of which, the exercise of powers under Section 319 Cr.P.C. has been resorted to by the trial Court. It is an admitted position that apart from the statement of PW-1, there is no evidence, which has been taken into consideration by the trial Court while exercising its powers under Section 319 Cr.P.C. A perusal of the same does not indicate that any new evidence has come on record which could be made the basis for summoning the present petitioner as an additional accused. The judgment of this Court in the case of Ram Karan @ Rodu (supra) clearly spells out that the material, which has formed the basis for summoning the person, has already been there for the investigating agency and on consideration of the same, the petitioner was found innocent and was shown in Column No. 2, merely on reiteration of the same facts without indicating anything new may not lead to advancing the case Crl. Revision No. 416 of 2009 -5- of criminal justice. There being no material on the record, which would entitle the trial Court to exercise its powers under Section 319 Cr.P.C. , the order passed by the trial Court cannot be sustained. The judgment of the Hon'ble Supreme Court, which has been relied upon by the counsel for the petitioner, again reiterates the same position. In view of the above, the present petition is allowed. The impugned order dated 19.01.2009 passed by the Additional Sessions Judge-III, Bhiwani, (Annexure P-1) is hereby quashed. August 21, 2009 (AUGUSTINE GEORGE MASIH ) pj JUDGE