1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1990 of 2009 Date of Decision: 11.8.2009 *** Hanuman .. Petitioner Vs. State of Haryana & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Shivraj Angi, Advocate for the petitioner. *** ARVIND KUMAR, J. The petitioner is aggrieved with the order dated 4.7.2009 passed by the learned trial court by virtue of which his application under Section 319 Cr.P.C. for summoning and trial of additional accused namely Subhash and Billu sons of Bhag Chand (respondents No.2 & 3) along with other accused has been dismissed. The petitioner is the author of FIR No. 78 dated 29.1.2008, under Sections 307, 148, 149 IPC & 25,54,59 of Arms Act, registered at Police Station Sadar Hisar. In the aforesaid case the investigating agency arrested and challaned five accused namely Naveen, Kaptan, Angad, Satish Kumar and Surender while respondents No.2 & 3 were not challaned. The complainant appeared in the witness box as PW.3, besides Rohtash and Anil were examined as PW.1 and 2 respectively and thereafter the prosecution filed an application under Section 319 Cr.P.C. seeking summoning of respondents No.2 & 3 as an additional accused, which, as noticed above, has been dismissed by the learned trial Court. I have heard learned counsel for the petitioner and have also gone through the paper-book file carefully. The provisions of Section 319 of the Code confers an extra ordinary power and should not be easily resorted to. It is well settled that sweep of Section 319 Cr.P.C. is limited as it is an enabling provision which 2 can be invoked only if there is convincing evidence disclosing the complicity of the person other than the person (s) already arraigned as accused. In the instant case, as per allegations, Subhash and Billu (private respondents) were present at the scene of crime with rifles. Respondent Subhash fired towards complainant Hanuman and his uncle Ram Mehar, but it hit on the right thigh of Anil, an accomplice of complainant party. However, the tenor of the impugned order reveals that Rohtash (PW1) and alleged injured Anil (PW2) while appearing in the witness box did not support the prosecution version and they were turned hostile. As per impugned order they even did not attribute the gun injury to the present respondents and failed to identify the accused persons facing trial. Although Ram Mehar and complainant Hanuman named the private respondents in their evidence before the Court, but it is apt to mention here that Ram Mehar was also declared hostile on account of suppression of true facts with regard to involvement of some of the accused already facing trial. Thus, merely be mentioning the name of a person as an accused, criminal liability cannot be fastened upon him. On the basis of self contradictory testimonies of prosecution witnesses, so far as involvement of private respondents in the commission of offence is concerned, it cannot be said that the private respondents were also involved in the offence, for which they are to be tried along with the accused facing trial. There has to be some other material on record which may prompt the Court to believe that the person so accused has complicity in the offence and her/his conviction is likely to result in the eventuality of facing the trial, which is missing in this case. The Hon'ble Supreme Court in the case of Michael Machado & Anr. v. Central Bureau of Investigation & Anr., 2000(2) RCR (Criminal) 75 (SC) 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, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained 3 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.” In the above facts, no fault could be found with the approach of the learned trial court while dismissing the application of the complainant under Section 319 Cr.P.C. The revision petition being without any merit is dismissed in limine. (ARVIND KUMAR) JUDGE August 11,2009 Jiten