Crl.Rev.No.2478 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Rev.No.2478 of 2008 Date of Decision: 6.3.2009 Santosh @ Sushi and others ....Petitioners Vs. State of Haryana and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Y.P. Singh, Advocate for the petitioners. Mr. Ajay Chaudhary, DAG, Haryana. .... RAJIVE BHALLA, J (Oral) Challenge in the present petition is to an order dated 8.7.2008, passed by the Additional Sessions Judge-II, Bhiwani, summoning the petitioners under Section 319 of the Code of Criminal Procedure. Counsel for the petitioners submits that petitioners no.1 and 2 are not named in the FIR or in the statements recorded under Section 161 of the Code. Petitioners No.3 and 4 though named were found innocent by the police. However, while deposing before the court Vinod Kumar, the complainant has set up totally different version of the occurrence and has implicated the petitioners by deposing that they were all carrying weapons and inflicted injuries. It is argued that this apparent difference on facts, between the two sets of statements, the trial Court should not have summoned the petitioners and should have dismissed the application filed Crl.Rev.No.2478 of 2008 2 by the prosecution. Reliance for the aforementioned arguments is placed upon Michal Machado and another V.Central Bureau of Investigation and another, 2000(2) R.C.R. (Crl.) 75, Isham Singh and others V. State of Haryana, 2004 (2) RCR (Crl.)279, Bharat Bhushan @ Sonu V. State of Haryana and another, 2005 (1) RCR (Crl.) 976 and Subhash Chand Kakkar V. State, 2005(3) RCR (Crl.) 174. Counsel for the State of Haryana submits that the complainant's deposition is clear and categoric as to the presence of the petitioners, the arms in their possession and the injuries inflicted. The fact that petitioners no.1 and 2 were not named in the FIR or that petitioners no.3 and 4 were declared innocent has been explained in the cross-examination. The trial Court has recorded a clear and categoric opinion that there is sufficient evidence against the petitioners that would require their being arraigned as accused, the present petition, therefore, be dismissed. I have heard learned counsel for the petitioners, perused the statements recorded by the police and the deposition recorded by the trial Court. The impugned order does not disclose any error of jurisdiction, as would enable this Court to interfere with the impugned order. It is true that the power to summon a person under Section 319 of the Code of Criminal Procedure flows from the plenary jurisdiction of a Court to ensure that a person must not escape the consequence of his criminal act but the nature of this power, places an onerous obligation upon a Court to exercise this power fairly and only where it arrives at a conclusion that the evidence on record discloses that a person other than the already arraigned accused has committed the same offence or has committed a different offence, during the course of the same transaction for which he may be arraigned to stand Crl.Rev.No.2478 of 2008 3 trial with the accused already arraigned. The judgements pressed into service by counsel for the petitioners are in no manner, divergent from the law referred to herein above. The judgement in Michal Machado's case (supra) states that if sufficient material is placed on record, a Court would be justified and in fact duty bound to summon a person, who has committed an offence. The judgements in Isham Singh and others, Bharat Bhushan @ Sonu and Subhash Chand Kakkar's cases(supra) do not strike any discordant note. As regards the factual matrix of the case, it would be appropriate to reproduce an extract from the complainant's statement, so as to place the order passed by the learned trial Court in its correct perspective. “On this information, I and my brother Pardeep reached in front of the gate of the temple, then Ramesh and his sons Sonu and Monu and son-in-law of Ramesh Ajit resident of Phulpura were armed with Lathi, Saria and Axe and were causing injuries to Nagpal and Mukesh. When I and Pardeep tried to intervene, then Ramesh gave Axe blow held in his hand which fell on the right side of my forehead and then Sonu gave Saria blow held in his hand which fell on left side of my face and then Monu give a Saria blow held in his hand which fell below the my left eye and Ajit resident of Phul pura give lathi blow held in his hand which fell on my left eye and Ramesh gave another blow with his Axe which fell on a wrist of my right hand. We also caused the injuries to other party in our defence.” Crl.Rev.No.2478 of 2008 4 The learned trial Court after considering the aforementioned deposition, the cross-examination thereon, the cross case, passed a considered order holding that the petitioners have committed an offence, for which they are required to be tried. The petitioners have been attributed injuries with specially identified weapons and, therefore, the mere fact that petitioners no.1 and 2 are not named before the police or that petitioners no.3 and 4 were declared innocent by the police, would not detract from the legality of the impugned order. As the impugned order does not suffer from any error of law or of jurisdiction, the present petition is dismissed. Nothing stated herein shall be construed to be an expression of opinion on the merits of the case. . 6.3.2009 (RAJIVE BHALLA) GS JUDGE