CRM No.M 25848 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.M 25848 of 2009 Date of decision: 9.3.2010 Resham Singh ...Petitioner Versus State of Punjab and another ...Respondents CORAM: HON'BLE MR.JUSTICE HARBANS LAL Present: Mr.PPS Duggal, Advocate for the applicant/petitioner Mr.RS Rawat, AAG, Punjab Mr.NK Banka, Advocate for respondent No.2. *** Harbans Lal, J.(Oral) This petition has been moved by Resham Singh under Section 482 of Cr.P.C. read with Article 227 of the Constitution of India for quashing the impugned order dated 20.7.2009 (Annexure P-4), vide which the petitioner has been summoned to face trial under Section 319 of Cr.P.C. I have heard the learned counsel for the parties. Learned counsel for the petitioner submitted with great eloquence that during inquiry, the petitioner was found innocent. It is only on the basis of partly recorded statement (Annexure P-7) of Puran Singh PW1 that the learned trial court has passed the impugned order (Annexure P4) for summoning the petitioner to face the trial alongwith his co-accused. The impugned order is non-reasoned and non-speaking and it does not fulfill the requirements of law. There is nothing on the record to show that the unrebutted statement of the said witness would ultimately lead to CRM No.M 25848 of 2009 2 conviction of the petitioner. In these premises, the impugned order is liable to be set aside. He has sought to place abundant reliance upon the observations rendered in re:Lal Suraj @ Suraj Singh and another vs. State of Jharkhand 2009(1) Recent Criminal Cases 702 (SC), Hardeep Singh vs. State of Punjab and others 2009(1) Recent Criminal Cases 95 (SC) and Mohd. Shafi vs. Mohd. Rafiq and another 2007(2) Recent Criminal Reports (Crl.) 762. As against this, the learned State counsel being assisted by the learned counsel for respondent No.2 pressed into service that Puran Singh PW1 has stated in categoric terms that Resham Singh (referring to the petitioner) gave two Kirpan blows, which hit on his left and right legs and this evidence is enough to record the conviction. So, apparently, the impugned order cannot be faulted with in any manner. I have given a deep and thoughtful consideration to the rival contentions. The relevant part of the statement (Annexure P-7) dated 7.7.2008 of Puran Singh PW1 reads as under: “Cross-examination by Sh.B.S. Sekhon, Advocate for accused. It is wrong to suggest that I am deposing falsely. At this stage, Addl.P.P. for the State moved an application under Section 319 Cr.P.C. Further cross-examination deferred.” Axiomatically, the learned Additional Public Prosecutor for the State had moved the application under Section 319 of Cr.P.C. when the learned defence counsel had just started cross-examining the said witness. In Mohd. Shafi's case (supra), the Hon'ble Apex Court has observed as CRM No.M 25848 of 2009 3 under: “12. The trial Judge, as noticed by us, in terms of Section 319 of the Code of Criminal Procedure was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same. 13. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed.” It can be reasonably culled out from these observations that the court cannot summon a person as an additional accused on the basis of CRM No.M 25848 of 2009 4 examination-in-chief of the prosecution witness. Before a court exercises its discretionary jurisdiction in terms of Section 319 of Cr.P.C., it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at, inter alia, upon completion of the cross-examination of the said witness. Harking back to the present one, virtually the application under Section 319 of Cr.P.C. was moved soon after conclusion of the examination-in-chief. In view of Mohd. Shafi's case (supra), without recording complete cross-examination of the prosecution witness, such application cannot be disposed of effectively. It is on the basis of the complete statement of the witness, the trial court is to record its satisfaction that if this evidence goes unrebutted, it would lead to conviction of the person sought to be summoned as an additional accused. Thus, in view of Mohd Shafi's case (supra), the impugned order is hardly sustainable. In view of the above discussion, the impugned order (Annexure P4) is set aside with a direction to the learned trial court to reconsider the said application on completion of the cross-examination of Puran Singh PW1. Petition stands disposed of. March 9, 2010 (Harbans Lal) gsv Judge Whether to be referred to the Reporter? Yes/No