Criminal Revision No. 982 of 2007 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 982 of 2007 Date of decision: February 15, 2008 Jasvir Singh .....Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL **** Present: Mr. R.S.Athwal, Advocate for the petitioner. Mr. J.S.Bhullar, Assistant Advocate General, Punjab for respondent. RAJESH BINDAL J. 1. The challenge in the present revision is to the order dated February 6, 2007 passed by Judge, Special Court, Nawanshahr summoning the petitioner in application filed by the prosecution under Section 319 of the Code of Criminal Procedure (for short “the Code”). 2. The case arises out of FIR No. 226 dated December 2, 2004 registered under Section 15/61/85 of the N.D.P.S.Act, 1985 at Police Station, Balachaur, District Nawanshahr against Ajit Singh @ Ranjit Singh @ Baba and on his disclosure the name of Jasvir Singh son of Bakhtawar Singh, the petitioner was also added. However, after completing investigation, police did not find sufficient evidence against the petitioner and accordingly did not file challan against him. It was during the trial that application was filed by the prosecution under Section 319 of the Code for summoning the petitioner and vide impugned order, the petitioner was summoned. Criminal Revision No. 982 of 2007 -2- *** 3. Learned counsel for the petitioner submitted that petitioner has been falsely implicated in the case. Infact on November 30, 2004 at 8.30 P.M. an accident took place between two trucks bearing registration No. PB-32-9033 belonging to Ranjit Singh @ Ajit Singh @ Baba and the other truck bearing No. HR-55-A-4758. As a result of accident, the driver of truck No. PB-32-9033, namely, Tarlok Singh died on the spot. As the petitioner was following in his truck, the trucks which met with accident, on his statement FIR under Section 279, 304-A and 427 IPC was registered against Jaswant Singh driver of truck No. HR-55-A-4758. At the relevant time, the truck of the petitioner was loaded with cement to be delivered at Banga. The Petitioner remained present with the police through out as he had sent his cleaner with the truck to unload cement at Banga. It was only on December 01, 2004 that the body of Tarlok Singh was handed over to his family members and Ajit Singh @ Ranjit Singh was also present at that time. Thereafter in the evening the petitioner went to the petrol pump of Chaman Lal to settle his account and remained there till 9/10 P.M. When he reached back in his village, he came to know that his truck bearing registration No. PB 32 A-1697 had been borrowed by Ajit Singh @ Ranjit Singh to shift the goods from the damaged truck. It was for the reason that both the petitioner and Ajit Singh @ Ranjit Singh are residents of the same village. Subsequently, the petitioner came to know that Ajit Singh was arrested for possessing 37 bags of poppy husk at Police Post, Ansron in the truck of the petitioner and the petitioner had also been named in the said FIR. The FIR regarding seizure of poppy husk against Ajit Singh was recorded on December 2, 2004 of the incident which took place at 8.15 P.M. on December 1, 2004. The truck of the petitioner was seized alongwith poppy husk. However, during investigation by the Superintendent of Police (Detective), the petitioner was not found to be guilty as it was opined that Jasvir Singh does not resemble the person, who had run away from the spot as he was fat. As no case was made out against the petitioner during the investigation, no challan was presented against him and it was only during the trial that in the application filed by the prosecution under Section 319 of the Code, the petitioner was Criminal Revision No. 982 of 2007 -3- *** summoned. Assailing the order passed by the learned Judge, Special Court, Nawanshahr dated February 6, 2007, the submission of learned counsel for the petitioner was that the evidence on record was not sufficient to opine that the petitioner is guilty of offence and needs to be tried alongwith other accused. The satisfaction as is required to be recorded in terms of Section 319 of the Code was not there. He has relied upon Michael Machado and another Vs. Central Bureau of Investigation and another 2000 (2) R.C.R. (Criminal) 75 and Krishnappa v. State of Karnataka, (2004) 7 SCC 792. 4. On the other hand, learned counsel for the State submitted that prima facie case was made out against the petitioner for the simple reason that truck, which was used in the offence was owned by the petitioner. Even the co-accused had stated that person, who had run away from the spot was the petitioner. Accordingly, keeping in view the object that no criminal should escape the clutches of law, the learned Court below has rightly exercised its power to summon the petitioner. In case he is found to be innocent, he would be discharged. 5. This Court in Criminal Misc. No. 11407-M of 2007 ( Ashok Kumar Vs. State of Haryana ) decided by a separate order passed today, while considering number of judgments of Hon'ble the Supreme Court and this Court in Rukhsana Khatoon (Smt.) Vs. Sakhawat Hussain and others (2002) 10 Supreme Court Cases 661, Krishnappa v. State of Karnataka, (2004) 7 SCC 792, Kailash Dwivedi Vs. State of M.P. and another (2005) 11 Supreme Court Cases 182, Palanisamy Gounder and another Vs. State reprsented by Inspector of Police (2005) 12 Supreme Court Cases 327, Kavuluri Vivekananda Reddy and another Vs. State of A.P. And another (2005) 12 Supreme Court Cases 432, Lok Ram Vs. Nihal Singh 2006 (2) RCR (Criminal) 707, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 Supreme Court Cases 296, Mohd. Shafi Vs. Mohd. Rafiq and another 2007 (2) RCR (Criminal) 762, Rajendra Singh Vs. State of U.P. and Anr 2007 (3) R.C.R. (Criminal) 1021, Municipal Corpn. of Delhi v. Ram Kishan Rohtagi, 1983 (1) RCR (Criminal) 73, Joginder Singh V. State of Criminal Revision No. 982 of 2007 -4- *** Punjab (1979) 1 SCC 345, Kishan Singh V. State of Bihar 1993 (1) RCR (Criminal) 647, Guriya @ Tabassum Tauquir and others Vs. State of Bihar and another 2007 (4) Recent Criminal Cases 518, Y. Saraba Reddy Vs. Puthur Rami Reddy and another (2007) 4 Supreme Court cases 773, Smt. Rani Vs. State of Haryana 2006 (1) R.C.R. (Criminal) 985, Surinder Kumar Changli Vs. State of Punjab 2006 (2) R.C.R. (Criminal) 359, Surjit Kaur and others Vs. State of Punjab and another 2006 (1) RCR (Criminal) 565, Rajbir Singh Vs. State of Haryana and others 2006 (3) RCR (Criminal) 195, Manoj Kumar Vs. Prabhu Ram 2003 (4) RCR (Criminal) 887, Isham Singh and others Vs. State of Haryana 2004 (2) RCR (Criminal) 279, Bharat Bhushan alias Sonu Vs. State of Haryana and another 2005 (1) RCR (Criminal) 976, Surinder Kumar Vs. State of Punjab Changli 2006 (2) RCR (Criminal) 359, Smt. Rajjo and another Vs. State of Haryana and another 2006 (3) RCR (Criminal) 635, Om Parkash and others Vs. State of Haryana 2007 (1) RCR (Criminal) 632, Ram Karan alias Roda and another Vs. State of Haryana 2007 (1) RCR (Criminal) 977, Ganesha Vs. State of Haryana and another 2007 (2) RCR (Criminal) 633 and Hukam Chand and anotehr Vs. State of Haryana 2007 (3) RCR 141 has summed up the broad principles, as to under what circumstances power under Section 319 of the Code should be exercised, which are in the following terms:- “i) Power to summon an accused is discretionary and extra-ordinary power, which should be exercised sparingly and only if compelling reasons exist at any stage of case. ii) The order passed under Section 319 of the Code of Criminal Procedure summoning an additional accused should not be a mechanical exercise. Court should record reasonable satisfaction and reasons in support of the order. iii) Power cannot be exercised to conduct a fishing enquiry. Criminal Revision No. 982 of 2007 -5- *** iv) There should be reasonable prospects of the case against the newly added accused ending in their conviction. v) Step to summon an accused can be taken only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge-sheet or the case-diary as such material does not constitute evidence. vi) Power can be exercised suo-moto or on an application by some one including accused already before the Court. vii) An accused is not entitled to be heard before the Court exercises power under Section 319 of the Code of Criminal Procedure. viii) Satisfaction of the Court is paramount before summoning an accused, which can be arrived at inter- alia upon completion of cross-examination of the witness. ix) Mere statement of the complainant without there being any other evidence on record may not be sufficient to summon the accused. Each case on this aspect needs cautious examination on facts before passing order of summoning of additional accused. x) Each case has to be considered on its own facts as there may be different stages of the case where the Court can reach to a conclusion that a prima facie case is made out against the accused sought to be summoned.” 6. If the facts of the present case are examined in the light of law laid down on the issue, it can safely be opined that the material before the Court below was not sufficient to opine that petitioner was prima facie guilty of offence. Reasonable satisfaction has not been recorded by the Court below. The only reliance is on the statement of PW2 the official from Criminal Revision No. 982 of 2007 -6- *** District Transport Office, who proved that the truck in question was owned by the petitioner and statement of PW3 Investigating Officer, who apprehended other accused Ajit Singh alongwith poppy husk at the spot. How the petitioner was identified as the person, who had run away from the spot is not clear as during investigation by the Superintendent of Police (Detective) it was found that it was not the petitioner, who had run away from the spot. Meaning thereby that there was contradiction in the version during investigation and what was stated by the Investigating Officer by the Court. 7. Accordingly, impugned order dated February 6, 2007 passed by Judge, Special Court, Nawanshahr is set aside. However, the same shall not debar the prosecution from filing application under Section 319 of the Code at any subsequent stage of the proceedings in case any further material comes on record justifying the summoning of the additional accused. 8. The revision petition is disposed of in the above terms. February 15, 2008 (Rajesh Bindal) Pka Judge