Crl. Misc. No.M-25717 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-25717 of 2010 Date of Decision: 21.03.2011 Babu Lal ....Petitioner Versus State of Haryana ...Respondent Crl. Misc. No.M-26649 of 2010 Surat Singh ...Petitioner Versus State of Haryana ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Tapan Kumar, Advocate for the petitioner. Mr. Sidharth Sarup, D.A.G., Haryana for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This order shall dispose of both Crl. Misc. No.M-25717 of 2010 and Crl. Misc. No.M-26649 of 2010 as both the cases arise out of the same impugned order. For the sake of convenience, the facts are being taken from Crl. Misc. No.M-25717 of 2010. This is a petition under Section 482 Cr.P.C for quashing of the Crl. Misc. No.M-25717 of 2010 2 impugned order dated 20.01.2010 passed by Judicial Magistrate Ist Class, Mohindergarh, whereby, the petitioner has been ordered to be summoned as an additional accused on an application under Section 319 Cr.P.C and the order dated 06.07.2010 passed by Additional Sessions Judge, Narnaul, whereby, revision petition filed by the petitioner against the aforesaid summoning order has been dismissed. An FIR No.219 dated 18.07.2002 was got registered by the complainant at Police Station Mohindergarh under Sections 148, 149, 323 and 506 IPC and as many as, 11 persons were implicated by showing them assailants. The petitioner was found innocent. Challan was filed only against six persons. After passing of about six years of alleged occurrence, the statement of the complainant PW1 was recorded on 24.09.2007 and then the application under Section 319 Cr.P.C was moved for seeking summoning of the petitioner. The trial Court vide impugned order dated 20.01.2010 allowed the said application and ordered the petitioner to be summoned to face trial along with the accused, who are already facing trial. Feeling aggrieved against the order of summoning dated 20.01.2010, the petitioner filed revision petition, which has been dismissed by the Additional Sessions Judge, Narnaul by passing the impugned order dated 06.07.2010. While challenging the summoning order dated 20.01.2010 passed by the Judicial Magistrate Ist Class, Mohindergarh, as well as, the order dated 06.07.2010 passed by the Additional Sessions Judge, Narnaul, vide which, the revision petition was dismissed, learned counsel for the petitioner contended that the order dated 20.01.2010 passed by the Judicial Magistrate Ist Class, Mohindergarh was a non-speaking order and has been passed without forming an opinion as envisaged under Section 319 Cr.P.C that while exercising the powers under Section 319 Cr.P.C to Crl. Misc. No.M-25717 of 2010 3 summon a person as an accused, an opinion is required to be formed that not only prima facie case was made out against him but court is also required to arrive at a satisfaction that evidence adduced on behalf of the prosecution if remains unrebutted would lead to conviction of persons, who are sought to be summoned in the case. No such satisfaction was recorded by trial Court and by lower revisional court as would be evident from the perusal of the impugned orders. Secondly, there was no cogent and convincing evidence before the courts below except the sole statement of the complainant, which cannot alone be made the basis for summoning of person as an accused, as it has been laid down in various judicial pronouncements passed by this Court and by Hon'ble the Apex Court that a person cannot be summoned solely on the basis of statement made by the complainant and has simply reproduced the contents of FIR. Learned counsel for the respondent, however, submitted that there was no improvement in the statement of the complainant. The complainant has specifically named the present petitioners. The complainant was even cross examined. As such, the petitioners have been rightly summoned under Section 319 of the Cr.P.C. Heard. It is not disputed that the only evidence before the Court while summoning the petitioners under Section 319 Cr.P.C was the statement of the complainant-Sat Pal and the only allegation against the present petitioners is as under :- “ Babu Lal son of Balbir gave a lathi blow on my left foot. Surat Singh also gave a lathi blow on my left foot. Randhir s/o Balbir, Mahesh s/o Umed Kurahawta Road, Ashok s/o Chhabila Ram r/o Bawana gave lathi blows on my back, hands and foot.” Crl. Misc. No.M-25717 of 2010 4 Thus, the complainant alleged, giving of lathi blows to as many as six persons and that too on the left foot, whereas, there is one injury i.e injury No.7 on the left ankle and one injury on the thigh. Thus, even the medical report does not support the corroborate version qua the present petitioners. However, it is a well settled proposition of law that an order under Section 319 Cr.P.C should not be passed only because one of the witnesses wish to implicate another person. The Courts are required to apply stringent tests; one of the tests is that the Court should come to the reasonable conclusion on the basis of evidence before it that the same is likely to lead to conviction. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, while considering the basic requirements of Section 319 of the Code, Court said: “The basic requirement for invoking the above Section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertain some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.” In Krishnappa v. State of Karnataka reported as 2004 (4) RCR (Criminal) 678, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very Crl. Misc. No.M-25717 of 2010 5 sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused. The Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388, in para 17, observed as under:- “17. The provision of Section 319 of the Code, on a plain reading,provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined: "...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence" in Section 319 contemplates that evidence of witnesses given in Court..." An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person (s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary Crl. Misc. No.M-25717 of 2010 6 jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.” Coming back to the present case, there is no evidence against the petitioners except the statement of the complainant. Even the allegations in the complaint are not corroborated with the medical report. The same does not inspire confidence and moreover, the trial Court, while summoning the petitioners, did not record the satisfaction that there was any remote chance of conviction of the petitioners on the basis of said evidence before it. As such, the present petition is allowed and the order dated 20.01.2010 passed by Judicial Magistrate Ist Class, Mohindergarh, whereby, the petitioner has been ordered to be summoned as an additional accused on an application under Section 319 Cr.P.C and the order dated 06.07.2010 passed by Additional Sessions Judge, Narnaul, whereby, revision petition filed by the petitioner against the aforesaid summoning order are set aside. A photocopy of this order be placed on the file of another connected case. (NIRMALJIT KAUR) 21.03.2011 JUDGE gurpreet