CRR No.1132 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.1132 of 2010 (O&M) Date of decision: 15.02.2011 Hasin and another ....Petitioners Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Gautam Dutt, Advocate, and Mr. Sarfraj Hussain, Advocate, for the petitioners. Ms. Preeti Chaudhari, AAG, Haryana. Mr. Pankaj Bali, Advocate, for the complainant. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) All these petitions bearing CRR No.1132 of 2010, CRR No.1128 of 2010, CRR No.1097 of 2010, CRR No.1068 of 2010, CRR No.1280 of 2010 and CRR No.3010 of 2010 have arisen from the common impugned order dated 29.3.2010 passed by Additional Sessions Judge, Nuh, thereby summoning the revisionists under Section 319 of the Code of Criminal Procedure to face the trial for an offence punishable under Sections 148/149/323/324/325/302/102-B/212 of the Indian Penal Code pursuant to FIR No.321 dated 6.9.2008. Prosecution story inter alia is that at about 11.30 a.m. on 6.9.2008 Mujaffar, complainant with Samim, deceased Kafil, Yusuf, Irfan and Akbar were sitting in lawn of Y.M.D. College, Nuh. In the meantime Rahis, Samim, Abbas and Saikul residents of village CRR No.1132 of 2010 (O&M) -2- Muradbas, Nauman and Aslam, residents of village Meoli, Mehender, Haseen, Jahid, Abbas, Sanaulla, Tarik and Khalid, residents of village Adbar, Wahid Kasai, Sahid, residents of Nuh, Aslam, Jahid, residents of village Salmba, Sajid, resident of village Kot and Arif, resident of village Neemkhera in furtherance of their common object came armed with dandas, iron rods, knives and pistols. The complainant went to office of Principal where Javed, Principal and Imtiyaj Ahmed, Lecturer Hindi were present. He made complaint to them and told that aforesaid accused came to kill him (complainant) and others. Thereupon Principal asked the complainant to keep on sitting in the lawn and promised that none could touch them. When complainant reached in the lawn Rahis and Nauman caught Samim, deceased and Shamim gave knife blow to him. Aslam gave a knife blow in thigh of complainant. Khalid gave an iron rod blow to Kafil. Sanaulla took out one country made pistol and hit on back of right hand of Kafil. When Soyab son of Asgar intervened all the assailants inflicted injuries to many students. In the meantime Kasim and many other students from the college collected. They were shifted to Government Hospital, Nuh. Complainant and Soyab were admitted there and medico legally examined, whereas Samim was referred to Government Hospital, Gurgaon. He succumbed to the injuries on the way and brought back in Government Hospital, Nuh where autopsy was conducted. On statement of complainant Mujaffar Khan instant FIR No.321 dated 6.9.2008 under Sections 148/149/323/324/325/302/212/120-B IPC and 25 of the Arms Act, 1959 was recorded at Police Station Nuh. After investigation, challan was submitted before the CRR No.1132 of 2010 (O&M) -3- Magistrate and thereafter case was committed to the Court of Session vide order dated 24.3.2009. Vide order dated 2.12.2009, charges to face trial under Sections 148/323/324/326/302/149 read with Section 120-B IPC were framed against all the accused, however, charge under Section 25 of the Arms Act was framed against accused Samim alias Rashid. Mujaffar Hussain, complainant was examined as PW3. After the examination of Mujaffar Hussain, application was moved to summon the present revisionists under Section 319 Cr.P.C., which was allowed vide order dated 29.3.2010. I have carefully heard learned counsel for the parties and have examined the record. Mujaffar Hussain has made following statement on oath before the Court: - “In the month of September, 2008 I was the student of B.A. Final of Yasin Meo Degree College, Nuh. On 6.9.2008 at about 11.30 a.m. 18 boys and two lecturers of Yasin Meo Degree College, Nuh including some outsiders, namely Samim, Saikul Abbas, Rahis, Haseen, Tarik, Sana, Hulla, Sahid, Mahender, Jahid, residents of vilalge Salambha, Wahid r/o Nuh, Sajid r/o village Kot, Arif r/o village Neemkhera, Aslam and Nauman r/o village Meoli, Imtiraz Lecturer came there when I alongwith Kafeel, Samim, Akbar and Yusuf were sitting in the lawn of college. The above named persons were having knife and country made pistols. The attacked on us. Rahis and Noman caught hold Shamim (since deceased) and accused Shamim gave a knife blow to Shamim in front the office of Principal of the college. Accused Aslam gave a knife blow on my left thigh. Thereafter, my uncle and grand father came in the college and we were shifted to CHC Nuh. I was admitted in the hospital at Nuh and Shamim was referred to General Hospital Gurgaon. I cannot tell who else caused injuries to whom. (At this stage, learned PP states that the witness is suppressing the truth so he may be declared CRR No.1132 of 2010 (O&M) -4- hostile and requested to cross examine him. Heard. Allowed). Since Mujaffar Hussain was declared hostile, thereafter he was cross-examined by the Public Prosecutor. During the cross-examination, Public Prosecutor tried to prove contents of FIR as well as contents of the statement recorded under Section 161 Cr.P.C. Statement of Mujaffar Hussain on the cross-examination by the Public Prosecutor is as under: - “Police came in CHC Nuh and my statement was recorded. I have seen my signature on Ex.PA. Its mine. It is correct that police recorded my statement Ex. PA on my dictation. It is also correct that statement Ex.PA was read over to me and I signed the same after admitting the same to be correct. It is correct that I have stated before the police that orally I made complaint to Principal Javed and lecturer of Hindi Imtiaz Ahmed that these boys had come for assaulting us. I have stated before the police in my statement Ex.PA that Principal asked us to remain sitting there and assured that no one will touch you. I also stated to the police that when I reachede in the lawn accused Samim @ Rasid s/o Hamid, r/o village Muradabas was having a knife and he caused injury on the stomach of Samim by knife. I also stated to the police in my statement Ex.PA that Khalid gave a saira blow to Kafile but he saved him. I also stated to the police in my statement Ex.PA that Sana Ulla after taking out a country made pistol from his dub hit the same butt wise on the right hand of Kafil. I had also stated to the police in my statement Ex.PA that Rahis after taking out a knife from the pocket of his pant inflicting it on right hand finger of Soyab, when Soyab tried to save us. I had also stated to the police in my statement Ex.PA that in the meantime, Kassam son of Ayb Khan and many students of the college had also come at the spot and on seeing them the accused fled away from there. I had also stated to the police in my statement Ex.PA that later on Samim died due to injuries suffered in the occurrence and that the occurrence took place with conspiracy of Javed Principal and Imtiaz Hindi Lecturer of YMD College.” CRR No.1132 of 2010 (O&M) -5- Perusal of the statement i.e. examination-in-chief and cross- examination by the Public Prosecutor would lead this case nowhere. I am unable to find out from the statement of Mujaffar Hussain what was the specific role played by the revisionists. Merely asking question about the contents of the FIR or about the statement recorded under Section 161 Cr.P.C. would not serve any purpose. In the opinion of this Court, power under Section 319 Cr.P.C. must be exercised with great care and caution. Vague, ambiguous or casual statement made by the prosecution witness should not be made basis to summon the person to face trial under Section 319 Cr.P.C. Power under Section 319 Cr.P.C. ordinarily shall be exercised when from the evidence available on the record it appears to the Court that person sought to be summoned is also involved in the offence and evidence available on the record if stands unrebutted would lead to the conviction of the person sought to be summoned. Mere strong suspicion is not enough to summon the person as accused. My view is fortified by the judgments of the Hon'ble Apex Court in the matters of Ram Pal Singh & others versus State of U.P. and another, 2009(2) RCR(Criminal) 131, Ram Singh & Ors. Vs. Ram Niwas & Anr., 2009(3) RCR(Criminal) 501 and Suman Vs. State of Rajasthan and another, 2010(1) Criminal Court Cases 269 (S.C.). Hon'ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, 2009(2) RCR(Criminal) 131 in para Nos. 15 and 16 has observed as under: - “15. The ingredients of Section 319 are unambiguous and indicate that where in the course of inquiry into, or trial of, an offence, it appears from the evidence that CRR No.1132 of 2010 (O&M) -6- any person not being the accused has committed any offence, for which such person could be tried together with the accused, the Court may proceed against such person for the offence he has committed. 16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” Hon'ble Apex Court in the matter of Ram Singh & Ors. Vs. Ram Niwas & Anr., 2009(3) RCR(Criminal) 501 in para No.17 has observed as under: - “The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word 'appears'. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case.” Hon'ble Apex Court in the matter of Suman Vs. State of Rajasthan and another, 2010(1) Criminal Court Cases 269 (S.C.) in para No.11 has held as under: - “11. Section 319 Cr.P.C. applies to all the Courts including the Sessions Court. It empowers the Court to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a summons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub-section (4) lays down that where the Court proceeds against any person under sub- section (1), the proceedings in respect of such person shall be commenced afresh and witnesses CRR No.1132 of 2010 (O&M) -7- are reheard. A reading of the plain language of sub- section (1) of Section 319 Cr.P.C. makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the Court finds that such person has committed any offence for which he could be tried together with the other accused.” In the present matter statement of Mujaffar Hussain does not indicate specific and clear role played by each of the revisionists. Rather Mujaffar Hussain has stated that he cannot state who else caused injuries to whom. For the recorded hereinabove, present petitions stand allowed. Order impugned is set aside. (Alok Singh) Judge February 15, 2011 R.S.