Criminal Misc.-M No.2696 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 17, 2008 Prem Singh & others .....Petitioners VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Yogesh Goel, Advocate, for the petitioners. Mr.Mehar Deep Singh, AAG, Punjab, for the State. **** RANJIT SINGH, J. Judicial Magistrate Ist Class, Kaithal allowed the application filed under Section 319 Cr.P.C. and directed that all the four proposed accused persons be summoned as co-accused in this case for commission of offences punishable under sections 323, 324, 325, and 326 read with Section 34 IPC. Petitioner Nos.1 and 2, Prem Singh and Mintu impugned the said order by filing a revision before Sessions Judge, Kaithal, who did not find any illegality or irregularity Criminal Misc.-M No.2696 of 2008 : 2 : in the impugned order and hence dismissed the revision petition. Both the orders are now challenged by filing a petition under Section 482 Cr.P.C. for quashing of the impugned orders dated 12.3.2007 and 5.12.2007 passed by Judicial Magistrate Ist Class, Kaithal and Sessions Judge, Kaithal, respectively. Once the petitioners had exercised their remedy of revision, it would be doubtful if they can be permitted to file the present petition under Section 482 Cr.P.C. for quashing of the orders as it would then amount to second revision under the garb of quashing petition. While issuing notice of motion, this court apparently was impressed with the submission made by the counsel for the petitioners that in the absence of cross-examination of the prosecution witnesses, it was not open for the trial court to summon the petitioners as additional accused by relying on the evidence led in examination-in-chief. At the time of issuing notice of motion, further proceedings were stayed. The application filed before the Judicial Magistrate Ist Class, Kaithal was for summoning Prem Singh, Mintu, Inderjeet alias Inder and Kura Ram. The revision before the Sessions Judge, Kaithal was filed by Prem Singh and Mintu as is seen from the impugned order dated 5.12.2007. The present petition before this court has been filed by all the four persons, who were summoned by Judicial Magistrate Ist Class, Kaithal. Two of the petitioners, namely, Inderjeet and Kura Ram did not approach the Court of Sessions by filing a revision and as such may not be entitled to maintain this Criminal Misc.-M No.2696 of 2008 : 3 : petition under Section 482 Cr.P.C. Without going into this aspect, the present petition is being decided on merits. The main contention raised on behalf of the petitioners that an additional accused cannot be summoned on the basis of examination-in-chief alone is on the basis of law laid down in Mohd.Shafi v. Mohd. Rafiq and another, 2007(2) RCR (Criminal) 762. The Revisional Court has rightly made reference to the case of Rakesh and another v. State of Haryana, 2001(3) RCR (Criminal) (SC) 681 to record that the Hon'ble Supreme Court had clearly held that it would be difficult to accept the contention of the learned counsel for the appellants therein that the term `evidence' as used in Section 319 Cr.P.C. would mean evidence which is tested by cross- examination. It is further observed that the question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word “evidence” occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the Court and from which the court can prima facie conclude that person not arraigned before it is involved in the commission of the crime. This court in Criminal Revision No.2126 of 2007, decided Criminal Misc.-M No.2696 of 2008 : 4 : on 20.12.2007 has already held that the contention raised in this regard cannot be accepted. Mohd.Shafi case (supra), was a case where the application was moved before the trial court for summoning an additional accused and the trial court noticed that till then a witness had only been examined-in-chief and declined to accept the application at that stage. This order was impugned before the High Court, which allowed the petition and set aside the order passed by the trial court. The order passed by the High Court was impugned before the Hon'ble Supreme Court and it is held:- “From the decisions of this Court, as noticed above, it is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross- examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set-aside. The appeal is allowed.” The ratio that can be culled out from the above observation of the Hon'ble Supreme Court is that no exception can be taken where the trial court is of the view that the application should receive its consideration only after conclusion of cross- Criminal Misc.-M No.2696 of 2008 : 5 : examination. It is discretion to be exercised by the trial court and if the court is of the view that such discretion should only be exercised after conclusion of cross-examination of a witness, then obviously there cannot be any exception taken to this approach. From this observation, it is not possible to contend that any binding precedent is being set in this judgment that additional accused can only be summoned upon conclusion of the cross-examination of a witness. Reference here can also be made to the case of Ranjit Singh v. State of Punjab, 1998(4) RCR (Criminal) 552 (SC), where the Supreme Court has clarified that “of course it is necessary for the Court to wait until the entire evidence is collected for exercise of said powers”. In this case also, it is held that it is difficult to accept the contention that the evidence as used in Section 319 Cr.P.C. would mean evidence, which is tested by cross-examination. The finding in this regard is as under:- “Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term, `evidence’ as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross- examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against Criminal Misc.-M No.2696 of 2008 : 6 : him and thereafter deciding whether such person is to be added as accused or not. Word “evidence” occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigation officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime.” Counsel for the petitioners could not say anything in this regard. His contention that the petitioners could not have been summoned only on the basis of examination-in-chief is, therefore, cannot be accepted. His submission in this regard was considered and rightly rejected by the Revisional Court, which would not call for any interference. Dismissed. October 17, 2008 ( RANJIT SINGH ) ramesh JUDGE