IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 361 of 2005 Surendra kaushik & others ` …….Applicants. Versus State of Uttaranchal & others ……Respondents. Mr. Navneet Kaushik, Advocate for the applicants. Mr. Nandan Arya, learned Assistant Government Advocate for the State of Uttarakhand. Mr. Manish Arora, Advocate for respondent no. 3. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard learned counsels for the applicant as well as the respondents. This Criminal Misc. Application under Section 482 of Cr.P.C. has been filed challenging the order dated 9.12.2004 passed by the Judicial Magistrate, Haridwar in Criminal Case No. 355 of 2003 State Vs. Wazir Ahmad on an application moved by the complainant under Section 319 of Cr.P.C. Brief facts of the case are that an F.I.R. was lodged by the complainant, who is a Junior Engineer in Public Works Department, against five persons, namely, Pawan Kumar Tyagi, Wazir Ahmad, Jagdish Prasad, Ramdev, Surendra with the allegations that they abused the complainant and had a scuffle with him in which they also tried to break his fingers. Thereafter, the police filed a chargesheet only against Wazir Ahmad and the present applicants were not named in the chargesheet. Consequently when the complainant was examined as P.W.1, he narrated the same incident as he stated in the F.I.R. whereby the present applicants did “marpeet”, etc. with the complainant. An application under Section 319 of Cr.P.C. was hence moved by the complainant for including the present applicants as well as accused which was allowed by the learned Judicial Magistrate, Haridwar and summons were issued against the applicants. The pointed submission of the learned counsel for the applicants before this Court is that application under Section 319 of Cr.P.C. cannot be allowed in a routine manner, though these powers 2 exist with the trial court. Normally an order under Section 319 of Cr.P.C. is passed in exceptional cases and in order to reach a just decision. The net result of making a person as a fresh accused would amount to re-apprisal of the entire evidence de novo. Learned counsel for the applicants has relied upon a judgment of Hon’ble Supreme Court in Sarabjit Singh and another Vs. State of Punjab and another, 2009 (3) RCR (Criminal) 388, wherein the Supreme Court has defined the law under Section 319 of Cr.P.C. and has held that these powers must be exercised very sparingly and in compelling circumstances. Paragraphs 17 and 18 of the Sarabjit Singh’s case (supra) are reproduced below :- 17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined: “…Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court…” 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 extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the 3 court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.” In the present case, the applicants have been issued summons. The trial court has proceeded against the present applicants and has added as accused merely on the statement given by P.W.1 who has said nothing new but reiterated what he had already stated in his F.I.R. where he was the complainant. Moreover, the F.I.R. is of August 2002. The Chargesheet was filed way back in December, 2002. The impugned order under Section 319 is of December, 2004 and now we are in August, 2010. Therefore, there has not been a proper application of mind by the trial court in exercising the jurisdiction under Section 319 of Cr.P.C. In fact this Court has no doubt in its mind that by adding the applicants as accused, it will delay the trial of the case which would amount to an abuse of process of the Court. Therefore, in order to secure the ends of justice, it is necessary that the order dated 9.12.2004 set aside. Order dated 9.12.2004 is accordingly set aside. However, it is clarified that the trial will continue against the accused Wazir Ahmad. With these observations, the present C-482 application is allowed. No order as to costs. The Registry is directed to send a copy of this order to the court concerned for necessary compliance. (Sudhanshu Dhulia, J.) 30.8.2010 Avneet