CRR-2025-2011 (O&M) [ 1 ] CRR-2068-2011 (O&M) :::::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) CRR-2025-2011 (O&M) Date of decision:02.11.2011 Satish Kumar ...Petitioner Versus State of Haryana ...Respondent (2) CRR-2068-2011 (O&M) Date of decision:02.11.2011 Babu Ram and others ...Petitioners Versus State of Haryana ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Hemant Bassi, Advocate, for the petitioner(s). Mr. Sagar Deswal, AAG, Haryana. ***** Rakesh Kumar Jain, J. This order shall dispose of two revision petitions bearing CRR-2025-2011 titled as 'Satish Kumar Vs. State of Haryana' and CRR-2068-2011 titled as `Babu Ram and others Vs. State of Haryana' in which the petitioners are praying for setting aside the order of the learned Additional Sessions Judge, Ambala dated 16.08.2011 by which they have been summoned under Section 319 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”]. The FIR was registered on the statement of Bahadur Singh, who had alleged that he was driving the motorcycle bearing CRR-2025-2011 (O&M) [ 2 ] CRR-2068-2011 (O&M) :::::::::: registration No.PB-27-9766 mark CT-100 on which Kuldeep Singh was pillion rider. At about 7.10 p.m., when they were a little ahead of Peer Baba towards Kalpi, 3 youths riding on a motorcycle came from behind armed with swords and gandasis and gave a gandasi blow to Kuldeep Singh, as a result of which they lost the balance and fell in the ditches on the side of the road. At that point of time, 10-12 more persons came there on 3-4 motorcycles. They were also armed with swords and gandasis. He and Kuldeep Singh ran towards the fields but were chased by those persons. After a short distance, Bahadur Singh allegedly fell down in the filed of rice and those persons could not see him due to darkness, but they kept on chasing Kuldeep Singh to whom injuries were given. He had alleged that he could recognize Balbir Singh, Gian Chand and Satish Kumar, but he could not recognize the others due to darkness who can only be described by Kuldeep Singh. While going back, the said persons also damaged his motorcycle. It is alleged that he suffered injuries on his left hip, both arms and toe of his right foot. He gave a phone call at the house of Kuldeep Singh and informed his wife about the incident who told him that those very persons had also come to their house and fought with the ladies by giving them beatings. The said persons had a grudge because of the occurrence dated 09.10.2009. Thereafter, Kuldeep Singh was referred by the doctor to PGI, Chandigarh and had ultimately succumbed to his injuries. After investigation, the challan was presented only against Gian Chand, Ram Pal @ Pala and Gulab Singh. The prosecution had examined 5 formal witnesses and Sukhjit Singh @ Joni, who is the son of deceased Kuldeep Singh, only to the extent of his examination-in- chief and when his examination-in-chief was over, the public prosecutor moved an application under Section 319 Cr.P.C. on 13.04.2011 for the purpose of summoning the 12 accused including the petitioners in both the revision petitions. The said application has been allowed by the learned Court below vide its impugned order dated 16.08.2011 which is being assailed herein. Learned counsel for the petitioners has submitted that CRR-2025-2011 (O&M) [ 3 ] CRR-2068-2011 (O&M) :::::::::: although Bahadur Singh/complainant had named 3 persons, namely, Gian Chand, Satish Kumar and Balbir Singh, but Balbir Singh was found to be innocent by the police and a request was made for his discharge which was declined by the learned Magistrate but his revision was allowed by the learned Additional Sessions Judge, Ambala on 23.04.2010. He further submits that Sukhjit Singh is himself involved in 11 cases and has named the petitioners because they are witnesses in Criminal Case No.41 of 2009 registered at Police Station Mullana against Sukhjit Singh. He further submits that even Sukhjit Singh had filed a petition bearing CRM-M-36659-2009 for handing over investigation to some independent agency but the same was dismissed on 26.04.2010. It is further submitted that Bahadur Singh suffered a supplementary statement under Section 161 of the Cr.P.C. in which he did not mention the names of the petitioners. Learned counsel for the petitioners has further argued that the learned Trial Court, while allowing the application filed under Section 319 Cr.P.C., has relied upon only the examination-in-chief of Sukhjit Singh. He has referred to a decision of the Supreme Court in the case of Mohd. Shafi v. Mohd. Rafiq and another, 2007 Crl. L.J. 3198(1) and a Division Bench judgment of the Delhi High Court in the case of Ripen Kumar v. Department of Customs, 2001 Crl. L. J. 1288 to contend that the evidence means the examination-in-chief and cross-examination and if a witness is not permitted to be cross-examined, then his statement cannot be termed as an evidence nor can be read as such. On the contrary, learned State Counsel has referred to a decision of the Supreme Court in the case of Hardeep Singh v. State of Punjab and others, 2008(4) R.C.R. (Criminal) 947 in which two questions have been referred to the Bench of 3 Hon'ble Judges, namely, (1) when the power under Section 319 Cr.P.C. of addition of accused can be exercised by a Court? Whether application under Section 319 Cr.P.C. is not maintainable unless the cross-examination of the witness is complete? (2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of CRR-2025-2011 (O&M) [ 4 ] CRR-2068-2011 (O&M) :::::::::: the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted? However, the decision in Mohd. Shafi's case (supra) has not been overruled so far. In this regard, learned counsel for the petitioners has relied upon a decision of the supreme Court in the case of State of Bihar v. Kalika Kuer @ Kalika Singh and others, AIR 2003 Supreme Court 2443 to contend that if there is a decision per incuriam because a possible aspect of matter was not considered or not raised before Court or more aspects of matter should have been gone into by Court deciding matter earlier, then it can be resolved only in two ways either to follow the earlier decision or refer the matter to a larger Bench to examine the issue. I have heard both the learned counsel for the parties, perused the record and I am of the view that the matter requires re-look by the learned Trial Court who should have waited for the cross-examination of PW6 Sukhjit Singh before passing the order on the application filed under Section 319 Cr.P.C. In view thereof, the present revision petitions are allowed and the matter is remanded back to the learned Trial Court to re-decide the application filed under Section 319 of the Cr.P.C. after cross-examination of PW6 Sukhjit Singh. A photocopy of this order be placed on the file of another connected case. November 02, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE