IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. M. No.15071-M of 2010 Date of Decision:12.10.2010 Rishi Aggarwal .... Petitioner Versus State of Punjab and another .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Atul Lakhanpal, Sr. Advocate with Mr. Arjun Lakhanpal, Advocate for the petitioner. Mr. K.S. Pannu, D.A.G. Punjab. Mr. D.S. Sandhu, Advocate for the complainant. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J.(Oral) The present petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of order dated 17.7.2008 (Annexure P-1) passed by Sub Divisional Judicial Magistrate, Sultanpur Lodhi, District Kapurthala, summoning the petitioner under Section 319 Cr.P.C. in FIR No.22 dated 25.4.2007 registered under Sections 420/406 IPC P.S. Talwandi Chaudhrian, District Kapurthala as well as order dated 8.5.2010 (Annexure P-2) passed by Additional Sessions Judge, Kapurthala dismissing the revision petition filed by the petitioner. The brief facts of this case are that the petitioner is a student and is pursuing his MCA from Pune (Maharashtra). Balwinder Singh had earlier filed a complaint in which only Sandeep Malhotra @ Saim was named as an accused and there were no allegations against the petitioner. Balwinder Singh filed another complaint in which the petitioner was named as the person in presence of whom the money was handed over to the Crl. M. No.15071-M of 2010 -2- mother of Saim Malhotra. The investigating agency did not find any incriminating evidence against the petitioner and only Saim Malhotra was challaned and the petitioner was not even placed in column No.2 in the report under Section 173 Cr.P.C. The learned Trial Court on the basis of uncrossed examined statement of Balwinder Singh summoned the petitioner as an accused on an application under Section 319 Cr.P.C by complainant- Balwinder Singh. The Revision petition filed by the petitioner has been dismissed by the learned Revisional Court vide his judgment dated 8.5.2010. Accordingly, the present petition under Section 482 Cr.P.C. praying for quashing of the impugned orders is preferred. Learned counsel for respondent No.2-complainant vehemently opposed the said petition and raised two folds arguments. First argument raised by learned counsel for respondent No.2-complainant is that second revision is not maintainable and filing of petition under Section 482 Cr.P.C. is nothing but a second revision. Secondly, the petitioner cannot raise the objection that the trial Court has summoned the petitioner without recording cross examination as Saim Malhotra is a proclaimed offender. No one is appearing before the trial Court. As such there is nobody to cross examine the witnesses. Reliance has been placed on the judgment of Hon'ble the Supreme Court rendered in the case of Suman v. State of Rajasthan and another 2009(4) RCR (Criminal) 908. The learned Sub Divisional Magistrate while summoning the petitioner vide his order dated 17.7.2008 only relied on the statement of the complainant whereas the investigating agency on the basis of the same Crl. M. No.15071-M of 2010 -3- statement and other evidence had come to the conclusion that Rishi Aggarwal had taken the amount as per asking of the Saim Malhotra and handed over to the mother of Saim Malhotra. There is no other evidence before the Court to summon the petitioner except the statement of the complainant. In Michael Machando and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, considering the basic requirements of Section 319 of the Code, Court said: “The basic requirement for invoking the above Section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertain some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.” In Krishnappa v. State of Karnataka reported as 2004(4) RCR (Criminal) 678, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizable against the person other than the accused. The Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388, in para 17, observed as under: “17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made Crl. M. No.15071-M of 2010 -4- 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 these 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.” Hon'ble the Supreme Court in Sarabjit Singh's case (supra) also held that 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 extra ordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. Thus, applying the test laid down in the case of Sarabjit Crl. M. No.15071-M of 2010 -5- Singh's case (supra), the impugned orders herein summoning the petitioner cannot be sustained. The petitioner is a student pursuing his MCA from Pune. The investigating agency did not find any incriminating evidence against him and he was found innocent. The same allegations were repeated in the statement of the complainant. The Magistrate had summoned the petitioner only on the basis of the said statement. The complainant was not even cross examined. There was no other evidence before the Magistrate to come to the conclusion that it is an extra ordinary case, which would lead to the conviction of the petitioner. Thus, the allegation that the petitioner was “present at the time” when the money was given itself is not sufficient to invite the summoning of the petitioner under Section 319 Cr.P.C. The judgment relied upon by learned counsel for respondent No.2-complainant rendered in the case of Suman (Supra) does not help the case of respondent No.2-complainant. In that case, there were specific and serious allegations levelled against the accused-Suman, who was summoned under Section 319 Cr.P.C. She subjected the complainant to physical and mental harassment and instigated the husband of the complainant to inflict physical torture, which was supported by the statement recorded by the police under Section 161 Cr.P.C. and a specific role was attributed in the statement recorded under Section 164 Cr.P.C wherein the role of the accused qua demand of dowry, physical and mental harassment was specified. There were letters written to her parents making out a prima facie case for issuing process. So much so, there were serious allegations against the accused Suman stating that she forcibly took the complainant to a lady doctor in order to get her operated so that she does not give birth to any child and was directly responsible for humiliating and torturing the Crl. M. No.15071-M of 2010 -6- complainant. Besides, pulling her hair and forcibly removing her rings. It was, in these circumstances, the Apex Court came to the conclusion that the order summoning the accused-appellant in that case did not suffer from any illegality or perversity warranting interference under Section 482 Cr.P.C There is no dispute with the proposition of law that the petition under Section 482 Cr.P.C. under the garb of second revision is not maintainable. However, it is also well settled that the inherent powers under Section 482 Cr.P.C. can be exercised in case of miscarriage of justice. Hon'ble the Supreme Court in the case of Dhariwal Tobacco Products Limited v. State of Maharashtra and another (2009) 2 SCC 370 held that even in cases where a second revision before High Court after dismissal of first one by Sessions Court is barred under Section 397(3), the inherent power of the Court is available as under: “Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab to Som Mittal v. Govt. of Karnataka has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai.) Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2) of the Code, the inherent power of the Court has been held Crl. M. No.15071-M of 2010 -7- to be available.” Thus, in view of the discussions made above, the impugned orders cannot be sustained. Accordingly, the present petition is allowed and order dated 17.7.2008 (Annexure P-1) passed by Sub Divisional Judicial Magistrate, Sultanpur Lodhi, District Kapurthala, as well as order dated 8.5.2010 (Annexure P-2) passed by Additional Sessions Judge, Kapurthala are set aside. However, in case, if any further incriminating material or evidence is brought on record during the course of trial against the petitioner, the prosecution is at liberty to move an appropriate application/fresh application. 12.10.2010 ( NIRMALJIT KAUR ) rajeev JUDGE