Crl. Rev. No. 12 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 12 of 2010(O&M) Date of Decision: 30.03.2011 Dhab Singh .... Petitioner Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Deepinder Singh, Advocate for the petitioner Ms. Shalini Attri, DAG Haryana Mr. Sandeep Kotla, Advocate for respondent No. 2 1. Whether Reporters of local papers 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? AJAY TEWARI, J. (ORAL) This petition has been filed against the order summoning the petitioner under Section 319 Cr.P.C. in case FIR No. 62 dated 27.4.2007 under Sections 148, 149, 323, 325, 307 IPC subsequently converted to Section 302 IPC, Police Station, Farrukh Nagar, District Gurgaon. Originally the petitioner was found innocent since he had produced certificate from the Army Authorities attesting his presence at 6.00 a.m. in the unit on the date of occurrence. Coincidentally the said Commanding Officer also appeared as PW-6 having been summoned by other co-accused. While summoning the petitioner, learned trial Court expressed some doubts on the correctness of the attendance certificate of the petitioner. Crl. Rev. No. 12 of 2010(O&M) 2 I have gone through the statement of DW-6 Major Anshuman Vivek and I find that the alleged inconsistency/ contradiction that weighed with the learned trial Court has been adequately explained. Hon'ble Supreme Court in the matter of Sarabjit Singh and another vs. State of Punjab and another, reported in 2009(3) RCR(Criminal) 388 has 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 Crl. Rev. No. 12 of 2010(O&M) 3 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 Supreme Court in the matter of Michael Machado and another vs. Central Bureau of Investigation, reported in 2000 Supreme Court Cases(Cri.) 609 has observed as under:- “11. The basic requirements 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, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained Crl. Rev. No. 12 of 2010(O&M) 4 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. 12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another 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 had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.” It is also brought to my notice that out of 16 accused brought before the Court, eight have been acquitted and eight have been found guilty. Crl. Rev. No. 12 of 2010(O&M) 5 In my considered opinion, the present case does not fall within the extraordinary circumstances listed above. Consequently, this petition is allowed. Impugned order is set aside. (AJAY TEWARI) 30.03.2011 JUDGE reena