CRR No. M 1864 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. M 1864 of 2010 Date of decision: 12.07.2010 Gurbhej Singh ........ Petitioner Versus State of Haryana and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Vijay Kumar Jindal, Advocate for the petitioner -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. On the statement of Gurbhej Singh, a case under Section 304- B/34 of Indian Penal Code was registered vide FIR No. 247 dated 07.09.2009. After investigation, report under Section 173 of the Code of Criminal Procedure was filed. Respondent No. 2-Joginder Singh son of Mehal Singh, Respondent No. 3-Paramjit Kaur wife of Joginder Singh and Respondent No. 4-Malak Singh son of Joginder Singh i.e. father-in-law, mother-in-law and husband were duly challaned. However, respondent No. 5 (Kashmir Singh) and respondent No. 6 (Virender Singh) were found CRR No. M 1864 of 2010 2 innocent and placed in Column No. 2. An application under Section 319 Cr.P.C. was filed by the prosecution after the statement of the witnesses i.e. PW1 Dr. Annu Sharma and PW2 Dr. A K Kohli who gave medical treatment to the said deceased and PW3/Complainant Gurbhej Singh was recorded. However, the said application was dismissed vide detailed order dated 24.05.2009 passed by the Additional District Judge, Karnal. It was contended by the learned counsel for the petitioner that respondent Nos. 5 and 6 have been wrongly left out by the Police, whereas, their names have been mentioned in the FIR as well as in the statement made by Gurbhej Singh. It was further submitted that the order dated 24.05.2010 passed by the learned Additional Sessions Judge, Karnal is absolutely passed on presumptions and assumptions and against wrong appreciation of evidence available on record. Respondents No. 2 to 4 were put on trial and during trial, prosecution has examined three witnesses. PW1 and PW2 are doctors and PW3 is complainant, namely, Gurbhej Singh. PW-3 has not only named accused No. 2 to 4 but has also named specifically respondents No. 5 and 6. Reference was was made to the relevant portion of the statement. Learned Counsel for the petitioner was heard at length. Respondent No. 5 is brother of the father-in-law of the deceased, whereas, respondent No. 6 is a younger brother of the husband of the deceased and is a school going student. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, considering the CRR No. M 1864 of 2010 3 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 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 CRR No. M 1864 of 2010 4 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 CRR No. M 1864 of 2010 5 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.” Hon'ble the Supreme Court in Sarabjit Singh's case (supra) also held that unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz. (i) an extra ordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. Applying the test as aforesaid to the facts of the present case, the present revision petition deserves to be dismissed. In the present revision petition, no FIR has been placed on record. However, even if for the sake of argument, it is assumed that the name of the petitioner finds mentioned in the FIR, the allegations in the FIR are obviously not more than the statement made by PW 3-Gurbhej Singh. The relevant portion of the statement reads as under:- “In fact, the accused were demanding the car and not only Malak Singh accused. Accused Malak Singh, his father Joginder Singh, his mother Paramjit Kaur, Virender Singh, the brother in law of my sister, and Kashmir Singh, brother of the father-in-law used to beat her up and would demand a car. Baljinder Kaur, my sister used to tell us about her being beaten up by the accused. My sister came to the parental house and narrated the mal treatment.” From the perusal of the above, it is evident that all the family CRR No. M 1864 of 2010 6 members have been named in one breath. No date or time of any incident has been mentioned. No specific allegation is alleged. Moreover, in the cross examination, the complainant has admitted that Kashmir Singh, brother of the father-in-law of the deceased (respondent No. 5) is staying separately. In fact, he went on to state that the said Kashmir is married for the last 20 years and is living with his wife happily. It is also admitted that the said Kashmir Singh was a member of Panchayat in the village and there is no complaint against him from the villagers or otherwise. He was never seen at logger heads with any body all these years. In his cross examination, he further went on to say that he never complained to the police that her sister had been mal treated nor did any other family member has ever complained about it to any authority. Thus, the statement does not appear to be convincing qua respondents No. 5 who is brother of the father-in-law of the deceased and Respondent No. 6 who is younger brother of the husband of the deceased and is a school going student. The allegations have been made against the entire family. It is the rising tendency to involve all the relatives in the matrimonial disputes. Even otherwise, they were found innocent during investigation. No specific allegations has been levelled. No time and date has been given to substantiate the same. The extra ordinary power conferred on this Court under Section 319 Cr.P.C. has to be exercised with restrain. It is not an extra ordinary case. The facts and evidence in the present case do not constitute CRR No. M 1864 of 2010 7 any compelling reason so as to enable this Court to come to the conclusion that it would warrant their prosecution with a good chance of conviction. No merit. Dismissed. (Nirmaljit Kaur) Judge 12.07.2010 mohan