In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Revision No.2382 of 2010 ..... Date of decision:28.10.2010 Bishnu Bhagwan Gupta and another .....Petitioners v. State of Haryana .....Respondent .... Present: Mr. J.S. Bedi, Advocate for petitioners. Mr. K.C. Gupta, Senior Deputy Advocate General, Haryana for the respondent-State. Mr. Rakesh Nehra, Advocate for the complainant. ..... S.S. Saron, J. Mr. Rakesh Nehra, Advocate has put in appearance on behalf of the complainant. Vakalatnama filed by him in Court today is taken on record. Heard learned counsel for the parties. The criminal revision petition has been filed by the petitioners against the impugned order dated 17.8.2010 (Annexure-P.1) passed by the learned Additional Sessions Judge, Rohtak whereby the petitioners have been summoned in terms of Section 319 of the Code of Criminal Procedure (`Cr.P.C.' - for short) as additional accused to face trial along with the accused already facing trial for the offences under Sections 392, 394, 454, 506 and 120-B Indian Penal Code (`IPC’ – for short), besides, Section 25 of the Arms Act, 1959. Cr. Revision No.2382 of 2010 [2] The FIR in the case has been registered on the complaint of Raman Khanna son of Shyam Sunder Khanna. It is alleged by the complainant that he is the Secretary of Adarsh School and Alps Education Society (`Society' – for short). His father Shyam Sunder Khanna is the President of the said Society. The complainant is the Manager and Care- taker of the Society. There were some differences amongst the members of the said Society. The former members Om Parkash Nandwani (petitioner No.2) and Bishnu Bhagwan Gupta (petitioner No.1) had initiated litigation in the High Court and several cases were also pending in the Courts at Rohtak and Delhi. On the date of the incident i.e. 2.1.2009 at 7.15 a.m., the complainant was sleeping in his room along with his mother – Smt. Chanchal Devi. In the meantime, a young man entered in their room and kept a pistol on his head. The complainant asked as to who was he and what was the matter. Upon hearing the complainant’s voice, his mother who was sleeping on the bed also woke up and started saying as to who was he and what was the matter. In the meantime, two more young men entered the room and one of them hit the mother of the complainant on the back of her head with the butt of a pistol which he was holding. They picked up the complainant and tied his hands and feet and made him sit behind the bed of his mother. The complainant then said that he had to ease himself and they should let him go. The boy who had caught the complainant took him with him to the bath room attached to the same room. Meanwhile, the complainant heard the voice of his mother asking the other two boys as to what did they want and they should leave her son (complainant). In the meantime, the boy who had caught hold of the complainant inflicted 2-3 Cr. Revision No.2382 of 2010 [3] blows on the left side of his head with the pistol he was holding in his hand. The blows hit above and under his left eye and they got him out of the bath room. The mother of the complainant, on the asking of the intruders, gave cash and jewellery to them from the almirah and she asked the boy who was holding the complainant to leave him. They also threatened the complainant. The complainant said that the cash and jewellery had been given to them and now what was the problem. On that the other boy said as to how can they leave him and they want more money. The complainant said that he did not have enough money. On that the boy who was holding the complainant said that he was fond of moving in an Accent car. Earlier he used to live in the housing board; besides, they said that they had taken a contract for `3,00,000/- to kill him and if he was to survive, he should give them `5,00,000/-. The complainant asked as to who gave the contract and the boy who was holding him slapped him and said that the name was not disclosed like this. Then the boy who was standing with them, said that they have been hired by Om Parkash Nandwani and Bishnu Bhagwan Gupta (petitioners). Then the complainant and his mother were taken to a room in the rear of the house. In the meantime, the father of the complainant who was taking a walk on the roof came down. The intruders terrorized the father of the complainant by showing him a revolver and asked him to stand quietly. The mother of the complainant in a state of terror gave `4 Lacs from the almirah, which was kept in a polythene bag. The intruders then searched the almirah of the house and tied them in the room by gagging their mouth with cloth. They closed the doors of all the three rooms and ran away while holding out threats to kill them. After some time, the mother of Cr. Revision No.2382 of 2010 [4] the complainant untied her hand and then untied the hands and feet of the father of the complainant. The complainant then came out and looked at the kitchen and felt some noise there on entering it. He saw in the kitchen store that the hands of Mishri Lal watchman were tied and a cloth had been put in his mouth. The complainant untied him. In the meantime, the father of the complainant through someone informed the Police Control Room. Then the complainant along with his mother went to Civil Hospital, Rohtak. On his return, he got his statement recorded which has been read over and was stated to be correct. The statement was attested by Wazir Singh Radhu, Police Post Arya Nagar, Rohtak. After investigation in the case had completed, the prosecution filed the charge-report (challan) against Deepak, Manjeet and Rohit. However, the petitioners were not sent-up for trial and were kept in column No.2 of the charge report (challan). During trial the statement of the complainant-Raman Khanna was recorded as PW-1 and he reiterated the version as given by him in the FIR. After his statement was recorded, the learned Public Prosecutor filed an application for summoning the petitioners as additional accused to face trial along with their co-accused, who had already been facing trial. The learned Additional Sessions Judge vide his impugned order dated 17.8.2010 has allowed the said application which is assailed by way of the present petition. Learned counsel for the petitioners has contended that the impugned order dated 17.8.2010 has been passed by the learned Additional Sessions Judge, Rohtak merely on the basis of statement of the complainant Ram Kumar (PW-1) which is nothing but a repetition of the FIR and on the Cr. Revision No.2382 of 2010 [5] strength of the same, the petitioners were not liable to be summoned as they are not remotely connected with the alleged incident. It is submitted that the allegation made by the complainant is a mere bald statement that has been made with an oblique motive to settle and pressurize the petitioners with respect to the dispute relating to the Society, which is pending. It is submitted that the petitioner No.1 is an Advocate by profession and both the petitioners are members of the `Society’ and they hold the position of President and Secretary respectively of the `Society’. The father of the complainant, namely, Shri Shyam Sunder Khanna remained President of the `Society’ till 2007. There is a serious dispute with regard to the Governing Body of the Society and long standing litigation is going on. A reference has been made to as many as six proceedings which are pending in various Courts. Therefore, the parties being at logger-heads with respect to the money spent by the father of the complainant on the construction of the school building and till date he having not furnished complete details of the members of the Society, the petitioners have been implicated. A reference has been made to the disclosure statements (Annexures-P.6 to P.8) of the main accused Manjeet, Deepak and Rohit. In pursuance of the same, it is submitted that the allegations are that they took `4 Lacs but except for a few thousand rupees they have made no other recoveries. In the disclosure statements, in any case, it is submitted that nothing is mentioned about the petitioners. Reliance has been placed by the learned counsel for the petitioners on the case of Michael Machado and another v. Central Bureau of Investigation and another, (2000) 3 SCC 262. It is submitted that the evidence produced by the prosecution does not satisfy the requirement for Cr. Revision No.2382 of 2010 [6] summoning the petitioners as additional accused. Learned counsel also cites Palanisamy Gounder and another v. State represented by Inspector of Police, (2005) 12 SCC 327. Therefore, it is submitted that continuation of proceedings against the petitioners is an abuse of process of the Court and the impugned order dated 17.8.2010 is liable to be quashed. In response, learned counsel for the State and the complainant have submitted that the petitioners have been rightly summoned in pursuance of the order dated 17.8.2010 passed by the learned Additional Sessions Judge, Rohtak. It is submitted that the learned Additional Sessions Judge with due application of mind and referring to the deposition of the complainant Raman Khanna, who has appeared as PW-1, has passed the order. It is stated that in the FIR as well as in the statement of the complainant recorded in Court, it has been brought out that the petitioners had engaged the other accused on contract to kill the complainant and his father. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records. There are indeed differences and disputes between the petitioners and the complainant-Raman Khanna, as also his father Shyam Sunder Khanna. The various civil suits that have been filed by the members and former members of the `Society’ against each other have been referred to during the course of hearing. The said suits are pending in various Courts. It is on 2.8.2009 at about 7.15 p.m., while the complainant was sleeping in his room, an unidentified person came near his bed and put a pistol on his temple. The complainant got up and he inquired as to who was he. The Cr. Revision No.2382 of 2010 [7] intruder, however, threatened the complainant. Thereafter, two other boys entered his (complainant’s) room and both were carrying pistols like weapons in their hands. Faces of all the three boys were muffled. On hearing the noise, the mother of the complainant also woke-up and asked as to who were these boys and what was going on and what were they doing there. The intruders then threatened the mother of the complainant as well and asked her to keep quite. The father of the complainant was walking on the roof of the house and when he came down he was also threatened. It is stated by the complainant in the FIR and reiterated during his deposition in Court that the boys who had intruded had stated that they were given a contract of `3 Lacs to kill him. They also represented that in case the complainant was to survive, he should pay them `5 Lacs. Initially, the intruders did not disclose the names of the person who had given the contract. Then later on, one of the boys said that they had been hired by the petitioners. The deposition (Annexure-P.3) of Raman Khanna (PW-1) has been placed on record. The version as has given by him in the FIR has been reiterated. It is submitted that the boys who had intruded in the house of the complainant had stated that they had got a contract to kill him for `3 Lacs and the said contract was given to them by the petitioners Om Parkash Nandwani and Bishnu Bhagwan Gupta. The complainant pleaded for safety of his life. However, they said that since they had got a contract for `3 Lacs and if he wanted to save his life then he would have to give them `5 Lacs. The complainant requested them that he had to go to the bath room to ease himself. They however, did not believe him and one of the boys went to the bath room with the complainant. There also he threatened the complainant Cr. Revision No.2382 of 2010 [8] and caused injuries on his left cheek with the butt of the weapon. The other boys also caused injuries to the mother of the complainant on the back of her head with the butt of weapons. The assailants repeatedly asked for money and the repeated requests of the complainant and his mother fell on their deaf ears. In Michael Machado and another v. Central Bureau of Investigation and another (supra), referred to by the learned counsel for the petitioners, it was observed by the Supreme Court that the basic requirement for invoking the power under Section 319 of the Cr.P.C. is that it should appear to the Court on the evidence collected during trial or in the inquiry that some person who is not arraigned as an accused in the case had committed an offence for which that person could be tried together with the accused already arraigned. It was held that it is not enough that the Court should entertain some doubt from the evidence about the involvement of another person, the Court ought to have some reasonable satisfaction from the evidence already collected regarding two aspects. Firstly, that the other person has committed an offence and secondly for such an offence that other person could as well be tried along with the already arraigned accused. It was further observed that the power conferred on the Court is discretionary but the same should be exercised only to achieve criminal justice and it is not that the Court should turn against the other person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then and also the amount of time which the Court has spent for collecting such evidence. Cr. Revision No.2382 of 2010 [9] In Palanisamy Gounder and another v. State represented by Inspector of Police (supra), it was held that the power under Section 319 Cr.P.C. cannot be exercised so as to conduct a fishing inquiry. A reference was made to Michael Machado and another v. Central Bureau of Investigation and another (supra) and it was held that unless the Court is hopeful that there is a reasonable prospect of the case against the newly added accused ending in their conviction for the offence concerned, the Court shall refrain from adding them as accused. In the present case, it is to be noticed that the accused, who are already facing trial do not have any enmity with the complainant so as to commit the offence. According to the learned counsel for the petitioners, however, they were merely persons who were out to loot and merely because they have carried out the loot, it is submitted that the petitioners cannot be tried along with them. It may, however, be noticed that in FIR itself it is stated by the complainant that the intruders who had come to their house had stated that they had been given a contract to kill him. Therefore, it is not that the story of contract money being paid to the accused, who are already facing trial has been set-up as an after thought but has been set-up at the initial stage. In case the same is established from the other evidence which is to be recorded there is a reasonable prospect of the case against the newly added accused i.e. the petitioners ending in their conviction for the offence attributed to them. There is indeed admitted enmity between the petitioners and the complainant and, therefore, there is a motive for the petitioners to hire the contract killers; besides, there can also be a motive for the complainant to falsely implicate the petitioners. On the basis of the Cr. Revision No.2382 of 2010 [10] contentions raised and also on the basis of the record it is quite evident that there has been bitter animosity and rancour between the members of the `Society’. The petitioners Om Parkash Nandwani and Bishnu Bhagwan Gupta are under litigation with the complainant in the present case. Therefore, there indeed can be a motive for the complainant to falsely implicate the petitioners. However, at the same time, there can also be a motive for the petitioners to engage persons on contract to harass and humiliate the complainant. These aspects admittedly cannot be gone into at this stage where the petitioners have been summoned on the basis of prima facie evidence. Therefore, even though there can be a motive for the complainant to implicate the petitioners but there can also be a motive for the petitioners to engage persons on contract to harass the complainant. Motive as is well known is a double edged weapon and it can be used by either party to wield the weapon of motive against the other. The key question as to whether the petitioners are involved or not can be considered and gone into after the prosecution has led its evidence and it is for the prosecution to convincingly and satisfactorily establish the guilt of the petitioners beyond shadow of reasonable doubt. Therefore, there being enmity between the petitioners and the complainant can cut both ways. It may constitute a ground for the commission of the crime and also provide a motive for the false implication of the petitioners. This would require to be considered and gone into by leading evidence and the prosecution cannot be denied the advantage to establish its case by leading evidence. Even the accused are entitled to a fair trial and they would be at liberty to establish their false implication by leading evidence. This, however, would have to Cr. Revision No.2382 of 2010 [11] be established by leading evidence and is not liable to be gone into at this stage. Therefore, the mere fact that there is a dispute between the petitioners and the complainant and, therefore, the petitioners are sought to be falsely implicated may or may not be correct. For it can well be that because of the dispute the petitioners had engaged contract killers. Learned counsel for the State has referred to the statement of Raman Khanna recorded on 1.5.2009 at the CIA Staff, Rohtak under Section 161 Cr.P.C. It is stated by Raman Khanna-complainant that he had been shown an album of suspects and after carefully seeing the album he had identified two persons whose photographs were in the album. The said two persons had intruded into their house and committed the offenses. Their names were Deepak Balhara son of Suraj Bhan and Manjeet son of Maninder. Therefore, according to the leaned counsel for the State the persons who are already facing trial were identified by the complainant- Raman Khanna from the album that was shown to him at the CIA Staff. The fact that there is no reference to the petitioners in the disclosure statements (Annexures-P.6 to P.9) of the accused Manjeet, Deepak Balhara and Rohit Khasa that is the accused who are already facing trial, is inconsequential as the prosecution case is not dependent solely on the disclosure statements of the co-accused but on the other evidence also which the prosecution is to lead independently of the disclosure statement. The disclosure statement of the co-accused, in any case, is not a substantive piece of evidence. Therefore, merely because the other accused did not mention the petitioners as accused in their respective disclosure statements is inconsequential. Cr. Revision No.2382 of 2010 [12] In the circumstances, the safe course would be to enable the prosecution to establish their case by leading evidence before the trial Court and also leaving the petitioners to set-up their defence in the trial for which they have been summoned. The Court is also to consider the stage of which the newly added accused are to be arraigned as an accused. The stage at which the trial has proceeded already and the quantum of evidence that has been collected and the amount of time spent for collecting such evidence is to be taken into account. At present, only the statement of complainant Raman Khanna (PW-1) has been recorded when the petitioners were summoned. Therefore, the case is at its initial stage and the petitioners can well be arraigned as accused with those who are already facing trial as not much time has yet been spent in the evidence collection process and the evidence would be led against the petitioners as well as those already facing trial. In the facts and circumstances, no ground is made out for interference with the impugned order passed by the learned trial Court. The criminal revision petition is accordingly dismissed. However, nothing observed herein shall be construed as an expression of opinion on the merits of the case and the learned trial Court shall consider the evidence and material as produced before it independently and in accordance with law without being influenced by any observation made herein. October 28, 2010. (S.S. Saron) Judge *hsp*