Criminal Revision No.1764 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Revision No.1764 of 2010 Date of Decision : 07.12.2011 Dr. Vikas Kumar and others ...Petitioners Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Gautam Dutt, Advocate, for the petitioners. Mr. Shekhar Moudgil, Asst. Advocate General, Haryana. Mr. Suman Jain, Advocate, for the complainant. AUGUSTINE GEORGE MASIH, J. (Oral) This revision petition has been preferred challenging the order dated 18.05.2010 passed by the Additional Sessions Judge, Fast Track Court, Hisar, vide which application under Section 319 Cr.P.C preferred by the prosecution for summoning the petitioners as additional accused, stands allowed. Counsel for the petitioners contend that the impugned summoning order dated 18.05.2010 cannot sustain in the light of the fact that the statement of complainant-Surender Kumar cannot be read as an evidence as he has not been cross-examined. In support of this contention, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Modh. Shafi vs. Mohd. Rafiq, 2007(2) R.C.R. (Criminal) 762 and in the case of Hardeep Singh vs. State of Punjab, 2008(4) R.C.R. (Criminal) 947, wherein this issue stands referred to a Larger Bench. Apart from this, counsel for the petitioners contends that merely because the petitioners have been named in the FIR Criminal Revision No.1764 of 2010 -2- and thereafter, statement made by complainant-Surender Kumar in the trial court would not be sufficient to conclude that they are prima facie involved in the commission of the offence. His further contention is that the word 'evidence' in Section 319 Cr.P.C. should be sufficient which is likely to lead into conviction and there being no such evidence on record, the order impugned in the present case cannot sustain. On the other hand, counsel for the respondent submits that although reference has been made by the Hon'ble Supreme Court in Hardeep Singh's case (supra) to the Larger Bench doubting the view taken by the Coordinate Bench in the case of Modh. Shafi (supra), Hon'ble Supreme Court, while considering various judgments of the Supreme Court on this issue, had finally concluded that the word 'evidence' used in Section 319 Cr.P.C. would mean evidence which is produced in Court and does not require cross-examination of the witness as such. In support of this contention reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Harbhajan Singh & Anr. vs. State of Punjab & Anr., 2009(3) R.C.R. (Criminal) 916. Counsel for the respondent has also placed reliance upon yet another judgment of the Hon'ble Supreme Court in the case of Sarojben Ashwinkumar Shah Etc. Vs. State of Gujarat and others, 2011(3) R.C.R. (Criminal) 852 where again the same view has been reiterated. His further contention is that there are specific roles attributed to the petitioners both in the FIR as also in the statement dated 18.02.2010 (Annexure P-1) made by complainant-Surender Kumar son of Ramji Lal, when he appeared as a witness before the trial Court as PW-1. He, thus, contends that the mandate of Section 319 Cr.P.C having been fulfilled qua the petitioners, they have rightly been summoned to face trial as an additional accused under Section 319 Cr.P.C by the trial Court. I have heard learned counsel for the parties and gone through Criminal Revision No.1764 of 2010 -3- the records of the case. It is true that the question as to whether the word 'evidence' used in Section 319 Cr.P.C would mean 'statement' which is tested by cross-examination or without that also stands referred to a Larger Bench by the Hon'ble Supreme Court in Hardeep Singh's case (supra). However, in the cases of Sarojben Ashwinkumar Shah Etc. (supra) and Harbhajan Singh & Anr. (supra), this very issue was dealt with by the Hon'ble Supreme Court and it has been held that where a judicious discretion exercised by the Court had led it to passing of an order under Section 319 Cr.P.C, the High Court exercising a revisional jurisdiction would interfere therewith, inter alia, in a case where legal principles laid down by this Court had not been satisfied. It has further been spelt out therein that the decision of the Hon'ble Supreme Court in the case of Mohd. Safi (supra), which was not agreed to by the Hon'ble Supreme Court in the case of Hardeep Singh (supra),which was referred to a Larger Bench is not an authority for the proposition that in each and every case the Court must wait till the cross-examination is over. Hon'ble Supreme Court in paras 58 to 60 held as follows:- "58. We may only observe that it is settled law that at the stage of issuing summons or process, a Court has to see whether there is prima facie case against the person sought to be summoned or against whom process is sought to be issued. At that stage, there is no question of giving an opportunity of hearing to such person. The entire scheme of the Code is that an accused does not come into picture at all till process is issued. As held by this Court in several cases including a leading decision in Nagavva v. Veeranna, (1976) 3 SCC 736, the accused at pre-process stage has no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It may, therefore, be said that till summons or process is issued against the accused, he has no right of audience and in that Criminal Revision No.1764 of 2010 -4- case, it cannot be said that on being satisfied on the basis of examination-in-chief, an application under Section 319 of the Code is not maintainable. 59. There is yet another reason which is also very relevant and material. When a person who is not shown as an accused is sought to be added on the basis of evidence in exercise of power under Section 319 of the Code, he is not before the Court. Other accused against whom the trial has commenced are very much before the Court and generally they are represented by an advocate/advocates. In the evidence of a witness, when role of other person i.e. other than the accused is described by prosecution witnesses, normally, accused who are already on record are not affected. Grant or rejection of application under Section 319 would generally not alter their position. In our considered opinion, therefore, holding that unless the cross-examination of a witness by accused who were already on record is over and complete, no power under Section 319 of the Code can be exercised, does not appear to be sound. 60. The matter can still be looked at from another angle. The Code has taken care by sufficiently protecting and safeguarding the interest of such added accused. Sub-section (4) of Section 319 expressly provides that where the Court exercises power under sub-section (1) and proceeds against a person not arrayed as an accused, “the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard”. Thus, after exercise of power by the Court under Section 319(1), such added accused would be placed in the same position as other accused and will get all rights an accused can get under the Code. The proceedings against the added accused shall be commenced afresh and witnesses will be reheard. Their evidence, prior to addition of the accused cannot be used against the accused who was not there earlier. The question of prejudice, hence, does not arise at all." Criminal Revision No.1764 of 2010 -5- In view of the above, although in the present case there is no cross-examination of the witness but that does not mean it is evidence which would not fulfill the norms of Section 319 Cr.P.C. Hon'ble Supreme Court in the case of Sarojben Ashwinkumar Shah Etc. (supra) after referring to the various judgments passed by the Hon'ble Supreme Court and the material, provisions of Section 319 Cr.P.C, culled out the legal position as follows:- “16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this : (i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word ‘evidence’ in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it. Criminal Revision No.1764 of 2010 -6- (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly – added persons shall be commenced afresh from the beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.” Perusal of the above conclusions drawn by the Hon'ble Supreme Court especially referred to as (iii), (iv) and (v) leaves no manner of doubt that the word 'evidence' in Section 319 Cr.P.C. contemplates the evidence given in Court in the inquiry or trial before the Court. The Court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. The Court must be satisfied that a case for addition of person as accused, not being the accused before it, has been made out on the additional evidence led before it. It has further been said that any person not being accused includes person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Court. It is also requirement that the Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned Criminal Revision No.1764 of 2010 -7- accused. Keeping in view these principles in light when the statement of the complainant, namely, Surender Kumar, PW-1, who is an eye witness, is read, it is apparent that these three petitioners have been assigned specific role. Petitioner No.2-Parveen Kumar is stated to be armed with a pistol and Petitioner No.1-Vikas Kumar and Petitioner No.3-Charan Dass have instigated and exhorted Dharam Dass, one of the accused, to kill Sushil brother of complainant-Surender Kumar and then Dharam Dass aiming at Sushil Kumar shot him on the left side of his jaw. Again there is allegation that Charan Dass, Vikas Kumar and Parveen Kumar shouted that the enemy is not going to be killed with one shot and thereafter, Dharam Dass fired another shot from his pistol which hit on the right side of armpit of Sushil Kumar, who ultimately died in the hospital. It would not be out of way to mention here that all the three petitioners have been named in the FIR and they have also been assigned specific roles therein. Keeping in view the evidence, which has been recorded in the trial Court in the form of statement of the complainant- Surender Kumar (PW-1), the requirements of Section 319 Cr.P.C. are fulfilled. The evidence has been led in the Court which is sufficient to indicate the involvement of the petitioners in the commission of the offence. This evidence, in the facts and circumstances of the present case, may be sufficient and may lead to conviction of the petitioners and therefore, the summoning order passed by the trial Court does not suffer from any illegality, which would call for any interference in its revisional jurisdiction, which may lead to conviction. In view of the above, the present petition stands dismissed. 07.12.2011 (AUGUSTINE GEORGE MASIH) adhikari JUDGE