CRR No.2881 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.2881 of 2010 (O&M) Date of decision: 02.02.2011 Babita @ Pappi ....Petitioner Versus State of Haryana and another ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Ram Pal Verma, Advocate, for the petitioner. Mr. Gaurav Dhir, DAG, Haryana. 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) Revisional jurisdiction of this Court has been invoked challenging the order dated 17.9.2010 passed by Additional Sessions Judge, Sonipat, thereby summoning the revisionist under Section 319 of the Code of Criminal Procedure as an additional accused to face trial in case FIR No.470 dated 4.10.2009 under Section 302 read with Section 34 of the Indian Penal Code and Section 25 of the Arms Act, Police Station City Sonepat. Learned Additional Sessions Judge while allowing the application has observed as under: - “PW3, Sushila has been cross examined at length on behalf of accused, present facing trial but nothing to suggest innocence of Rajeev and Babita @ Pappi in the given allegations could be extracted in her cross examination. Moreover, CRR No.2881 of 2010 (O&M) -2- according to this witness, her husband immediately prior to his death had also told her that at the instance of Pappi, Rajeev and Dabar had fired shots at him. Therefore, after his death, his said version amounts to his dying declaration, which too, cannot be allowed to escape its legal application. Furthermore, there is no material on record to absolve them of their alleged attributed role in the allegations in terms of aforesaid deposition of PW3 Sushila, complainant. Consequently, application of prosecution is allowed with a direction to summon Rajeev son of Suresh R/o Lal Darwaja, Sonipat and Babita @ Pappi wife of late Laxman Dass R/o Mohalla Kalan, Sonipat as additional accused to face trial in the case for 12.10.2010.” Learned counsel for the petitioner has placed reliance on the judgments of the Hon'ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, 2009(2) RCR(Criminal) 131 as well as in the matter of Suman versus State of Rajasthan and another, 2010(1) Criminal Court Cases 269 (S.C.). Hon'ble Apex Court in the matter of Ram Pal (supra) in paras No. 15 and 16 has held 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 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 CRR No.2881 of 2010 (O&M) -3- 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.” Learned counsel for the petitioner has also placed reliance on the judgment of this Court in the matter of Ram Singh @ Lilla versus State of Haryana and others, Crl. Revision No.61 of 2011 decided on 27.1.2011, in which this Court while placing reliance on the judgments of the Hon'ble Apex Court in the matter of Ram Pal Singh & others (supra) and Suman (supra) has held as under: - “Having perused both the judgments as cited by the learned counsel for the petitioner, now, it is no more res integra that power under Section 319 Code of Criminal Procedure can be exercised by the Trial Court when Trial Court finds that there is a sufficient evidence against the persons sought to be summoned as an accused, prima facie proving their complicity in the offence and Trial Court finds from the material available on the record that such persons have also committed the offence and must be tried along with other accused already facing trial.” Perusal of the impugned order reveals that learned trial Court has not observed that from the material available on the record involvement of the revisionist in the offence seems to be proved prima facie. In fact, learned Additional Sessions Judge has only observed that there is no material on the record to suggest innocence of the accused. While exercising power under Section 319 Cr.P.C., trial Court shall not summon the accused only because there is no material on the record to CRR No.2881 of 2010 (O&M) -4- suggest innocence of the accused, rather trial Court can summon the person as an additional accused to face trial when on the material available on the record trial Court opines that person sought to be summoned is involved in the offence. In view of the above, impugned order cannot be sustained in the eyes of law. Petition is allowed. Impugned order is quashed. Learned counsel for the parties have fairly stated that let learned Sessions Judge pass fresh order after discussing material available on the record in accordance with scope of Section 319 Cr.P.C. (Alok Singh) Judge February 02, 2011 R.S.