CRM No. M 19097 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 19097 of 2009 Date of decision: 19.01.2010 Zora Singh and another ........ Petitioners Versus State of Haryana .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. G S Bajwa, Advocate for the petitioners Mr. K S Pannu, DAG, Punjab for the respondent Mr. J S Saneta, Advocate for respondent No. 2 - complainant -.- 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. This is a petition under Section 482 of Criminal Procedure of Code for quashing the summoning order dated 12.01.2009 (Annexure P4) passed by Additional Sessions Judge, Ambala on an application under Section 319 Cr.P.C. The only allegation in the FIR against the petitioners is that petitioner No.1-Zora Singh was armed with gandasi and petitioner No. 2 CRM No. M 19097 of 2009 2 Gulzar Singh was having lathi in his hand. No injury is said to have been inflicted by Zora Singh either on the complainant or on the deceased. Similarly, Gulzar Singh is also not attributed any injury. It was stated that they were involved due to old rivalry between two groups of the village politics. On investigation, both the petitioner were found innocent. Accordingly, their names were dropped by the Investigating Officer while presenting the challan. Thereafter, statement of Jang Singh-PW5 was recorded on 12.01.2009. In his statement PW-5, simply stated that both petitioners i.e. Zora Singh and Gulzar Singh were present at the time of occurrence. From the perusal of the statement placed on record as Annexure P-2, it is evident that PW-5 Jang Singh also did not allege any injury to the petitioners. Subsequently, an application under Section 319 Cr.P.C. was filed on behalf of the prosecution. On the basis of the same, the petitioners have been summoned vide order dated 12.01.2009 (Annexure P4). The relevant portion of the Summoning order dated 12.01.2009 reads as under:- “Cross examination of PW 5 Jang Singh recorded today, perusal of which goes to show that he has levelled allegations against Gulzar Singh son of Nanak Singh and Jora Singh son of Charan Singh, who according to him, also participated in the occurrence, were armed with lathis and caused injuries as well.” A perusal of the summoning order dated 12.01.2009 shows that the Additional Sessions Judge, Ambala while summoning the petitioners observed that the petitioners had caused injuries. It is not understood as to CRM No. M 19097 of 2009 3 how the said finding has been recorded. No evidence or statement has either been referred to or placed on record or brought to the notice of the Court to show that any injury was inflicted by the petitioners. Learned counsel for respondent No. 2 also could not point out from any document or statement to show that any injury was inflicted by the petitioners. Reply has been filed by the State. Learned State counsel also could not point out from any evidence or statement that the petitioners had caused any injury. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, 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 CRM No. M 19097 of 2009 4 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. Learned counsel for the petitioners further relied on the judgement of the Apex Court rendered in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388. Para 17 of the said judgement reads 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: CRM No. M 19097 of 2009 5 "...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 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. While summoning, the learned Additional Sessions Judge, CRM No. M 19097 of 2009 6 recorded that injuries were inflicted by the petitioners. Whereas, neither the learned counsel for the complainant or the learned counsel for State could point out from the FIR or the statement of PW-5 Jang Singh which was relied upon to summon the petitioners to show the allegation of injury levelled against the petitioners. In the present case, there was no additional evidence to summon the petitioners. The allegations in the FIR were investigated into. The petitioners were found innocent. The same allegation was repeated in the statement of PW-5 Jang Singh. Nothing more was said to enable the Additional Sessions Judge, Ambala to come to the conclusion that it was an extra ordinary case and same would lead to the conviction of the petitioners. In view of the discussion made above, the impugned summoning order dated 12.01.2009 passed by the Additional Sessions Judge, Ambala cannot be sustained and is accordingly set aside as there is no evidence or material or any compelling reason to justify the exercise of power under Section 319 Cr.P.C. to summon the petitioners. The present petition is accordingly allowed. (Nirmaljit Kaur) Judge January 19, 2010 mohan