Crl. Revision No. 154 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 154 of 2010 (O&M) Date of Decision : April 6, 2011 Major Singh ...... Petitioner Versus State of Punjab ...... Respondent **** CORAM : HON'BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be allowed to see judgment ? 2. To be referred to reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present : Mr. V.K. Sandhir, Advocate, for the petitioner. Mr. K.D. Sachdeva, Addl. A.G. Punjab. **** Alok Singh, J (Oral) Present revision petition is filed by Major Singh-complainant assailing order dated 6.11.2009, passed by Additional Sessions Judge, Fast Track Court (Adhoc), Tarn Taran, whereby the application moved by the complainant under Section 319 Cr.P.C. to summon Mangal Singh, Amarjit Kaur, Sharanjit Kaur @ Sharan, sister and maternal uncle of Mangal Singh, to face trial as co-accused for the offence under Sections 366A/376 of In- dian Penal code was rejected. Crl. Revision No. 154 of 2010 (O&M) 2 The brief facts necessary for disposal of this petition are that on 6.2.2009 the prosecutrix (whose identity is being disguised in view of the direction of the Hon’ble Apex Court) was allegedly called by Sharanjit Kaur daughter of Mangal Singh to her house while all other members of the fam- ily of the petitioner were busy in attending the marriage of their relative. Said Sharanjit Kaur allegedly took the prosecutrix to her house and thereaf- ter all the respondents allegedly conspired and took the girl to Amritsar where she was detained till 24.4.2009 on which date the police got her re- covered. The statement of the prosecutrix was got recorded under Section 164 Cr.P.C. and after completion of the investigation, challan was presented against accused Chanan Singh. During the course of trial, the petitioner filed an application under Section 319 Cr.P.C. for summoning Mangal Singh, Amarjit Kaur and Sharanjit Kaur which was rejected by the trial Court. Not satisfied with the impugned order, the petitioner has preferred the present revision petition. I have heard the learned counsel for the parties and have gone through the record. Learned counsel for the petitioner has vehemently argued that learned trial Court has erroneously dismissed the application on the ground that there are material discrepancies in the statement of the prosecutrix un- der Section 161 Cr.P.C. as well as in the statement made before the Court, regarding the role of the respondent in kidnapping the prosecutrix. Learned counsel for the petitioner has further argued that as the statement made un- der Section 161 Cr.P.C. cannot be taken into consideration being admissible in evidence, therefore, the trial Court was unjustified in rejecting the appli- cation under Section 319 Cr.P.C. While placing reliance upon the judgments of Apex Court in cases reported as “Rajendra Singh vs. State of U.P. and another, 2007 (3) R.C.R. (Criminal) 1022, Guriya @ Tabassum Tauquir Crl. Revision No. 154 of 2010 (O&M) 3 and others vs. State of Bihar and another, 2007(4) R.C.R. (Criminal) 497 and Hardeep Singh vs. State of Punjab and others 2008(4) R.C.R.(Crimi- nal) 947, learned counsel for the petitioner has argued that the Court has the power to proceed against a person if it appears to the Court that the said per- son committed offence though he has not been arrayed as an accused in the challan and as such the impugned order is liable to be set aside. I have given my thoughtful consideration to the arguments ad- vanced by the learned counsel for the petitioner, but the same are liable to be rejected. As per the prosecution story, the prosecutrix was taken away by Sharanjit Kaur and thereafter in connivance with the aforementioned per- sons accused, Chanan Singh enticed her on the pretext of marrying her and kept in a kothi at Amritsar where the prosecutrix had been raped. From the material available on the record, prima facie, it is proved on record that Mangal Singh and Amarjit Kaur (parents of accused-Chanan Singh) and Sharanjit Kaur (sister of accused-Chanan Singh) were not present when ac- cused Chanan Singh had allegedly enticed the prosecutrix on the pretext of marrying her and at the time of committing rape with her at Amritsar. The persons sought to be summoned under Section 319 Cr.P.C. have no active role in the commission of the crime. Moreover, power under section 319 Cr.P.C. can be exercised only when trial Court during inquiry or trial finds that evidence, available on the record, if stands unrebutted would lead into the conviction and it seems to the Court that persons sought to be summoned are involved in the offence. Hon’ble Apex Court in the matter of Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr. reported in 2000(3) SCC 262 in paragraph Nos. 11 and 12 has observed as under:- Crl. Revision No. 154 of 2010 (O&M) 4 “11. 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, 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 some doubt, from the evi- dence, 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 per- son has committed an offence. Second is that for such offence that other person could as well as 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 exer- cised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence con- necting 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.” Crl. Revision No. 154 of 2010 (O&M) 5 Hon’ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, reported in 2009(2) RCR (Criminal) 131, in paragraph Nos. 15 and 16 has observed as under:- “15. The ingredients of Section 319 are unambiguous and indi- cate that where in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence, for which such person could be tried together with the accused, the Court may proceed against such person for the offence he has committed. 16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” Hon’ble Apex Court in the matter of Sarabjit Singh and Anr. Vs. State of Punjab and another reported in 2009(16) SCC 46, in paragraph no.17 has observed as under:- 17……. 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 extraor- dinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is Crl. Revision No. 154 of 2010 (O&M) 6 such which would reasonably lead to conviction of the person sought to be summoned.” Hon’ble Apex Court in the matter of Suman versus State of Rajasthan and another, reported in 2010(1) Criminal Court Cases, 269 (S.C.), in paragraph no.11 has held as under:- “11. Section 319 Cr.P.C. applies to all the Courts including the Ses- sions Court. It empowers the Court to add any person, not being the accused before it, but against whom there appears during trial suffi- cient evidence indicating his involvement in the offence, as an ac- cused and direct him to be tried along with other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a sum- mons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub- section (4) lays down that where the Court proceeds against any per- son under sub-section (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. A reading of the plain language of sub-section (1) of Section 319 Cr.P.C. makes it clear that a person not already an accused in a case can be pro- ceeded against if in the course of any inquiry into or trial of an of- fence it appears from the evidence that such person has also commit- ted any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be in- ferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be pro- ceeded against even though in the course of any inquiry into or trial of any offence the Court finds that such person has committed any of- Crl. Revision No. 154 of 2010 (O&M) 7 fence for which he could be tried together with the other accused.” This Court in the matter of Shivraj Singh vs. State of Haryana and others, Crl. Revision No. 1551 of 2010, decided on 17.02.2011 having placed reliance on the various judgments of the Hon’ble Apex Court includ- ing the judgments cited herein above has held as under:- “From the perusal of the judgments of the Apex Court (supra), it can safely be held that power under Section 319 of the Code can be exercised only when from the evidence available on the record in- volvement of the accused is found by the Court and evidence so led before the Court if stands unrebutted would result in the conviction of the accused sought to be summoned. However, mere suspicion about the involvement of the accused to be summoned from the evi- dence available on record would not justify the exercise of power un- der Section 319 of the Code. Power under Section 319 of the Code is the discretionary power and should be used very sparingly with great care and caution.” In the opinion of this Court, power under Section 319 of the Code must be invoked with great caution and very sparingly when Court is satisfied that there is sufficient evidence on the record and if such evidence stand unrebutted would lead to the conviction and further Court is satisfied that joint trial seems to be just and proper. Power under Section 319 of the Code should not be exercised when only vague and ambiguous evidence is brought before the Court In the case in hand the persons sought to be summoned under Section 319 Cr.P.C. have not been named by the prosecutrix at the initial stage. While exercising power under Section 319 Cr.P.C. Court must bear in mind the tendency of the people to implicate all the relatives in such type of Crl. Revision No. 154 of 2010 (O&M) 8 cases. Otherwise also, it does not appear to be plausible that father, mother and sister would allow their son/brother to commit rape in their presence. As there is no material available on the record which would ultimately lead to their conviction, the learned trial Court has rightly dismissed the applica- tion. I am satisfied that evidence on record does not satisfy the tests as laid down by the Hon’ble Supreme Court. Evidence does not inspire confidence. Judicial discretion exercised by the trial Court should not lightly be inter- fered with. For the foregoing, I find that the impugned order does not call for any interference by this Court and as such the present petition being de- void of merit stands dismissed. (Alok Singh) Judge April 6, 2011 Anand