IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRIMINAL REVISION 2222 OF 2008 DATE OF DECISION : OCTOBER 24, 2008 KULDEEP SINGH ....... PETITIONER(S) VERSUS STATE OF HARYANA & ANR. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. KS Nalwa, Advocate, for the petitioner(s). AJAI LAMBA, J. This revision petition has been filed in challenge to order dated 1.10.2008, passed by the Additional Sessions Judge-I, Fatehabad, under Section 319, Code of Criminal Procedure. The contention of the learned counsel for the petitioner is that the application under Section 319, Code of Criminal Procedure, filed by the prosecution has been dismissed for reasons that are not legally tenable. There is sufficient evidence available on the record to summon Kishan Singh son of Niranjan Singh (respondent No.2) as additional accused to stand trial along with Nirmal Singh son of Niranjan Singh and others. Learned counsel for the petitioner, in this regard, has referred to the judgments in Mahant Amar Nath v. State of Haryana and another, Criminal Revision 2222 of 2008 2 (1983) 1 Supreme Court Cases 391, Rakesh and another v. State of Haryana, (2001) 6 Supreme Court Cases 248, Lok Ram v. Nihal Singh and another, (2006) 10 Supreme Court Cases 192 and Rajendra Singh v. State of U.P. and another, (2007) 3 Supreme Court Cases (Cri) 375. I have heard the learned counsel for the petitioner and have gone through the impugned order. The gist of the FIR, lodged at the instance of Kuldeep Singh son of Sukhdev Singh, is that due to shortage of electricity, it was decided that tube well motors be not operated. Nirmal Singh son of Niranjan Singh and others, however, did not follow the decision. Jumpers of the tube well line of Nirmal Singh were removed. Nirmal Singh put iron chain on main line to cut supply to the villages. When the villagers came to know of this, Sukhdev Singh along with complainant and others (30/40 persons) reached near Rest House where Nirmal Singh with .12 bore gun, Kishan Singh son of Niranjan Singh (respondent No.2) armed with revolver, Gurbir Singh son of Nirmal Singh, armed with rifle, Gurpreet Singh son of Kishan Singh armed with revolver, were present. On being asked why the electricity supply had been cut, Nirmal Singh got infuriated and fired a shot with gun at the father of the complainant (Sukhdev Singh) which hit him on right side of chest upon which he fell down. In the meantime, it is alleged that Kishan Singh (respondent No.2), Gurbir Singh and Gurpreet Singh also raised extortion and these persons fired shots with their respective weapons. After investigation, incriminating material was found only against Nirmal Singh, Gurbir Singh and Gurpreet Singh. Criminal Revision 2222 of 2008 3 Respondent No.2-Kishan Singh was not charge-sheeted and on an application having been filed by the prosecution, he was discharged by the court of Sub Divisional Judicial Magistrate, Ratia, on 15.9.2007. It is evident from the documents placed on record viz. Annexures P-2 to P-4 and P-6 to P-8, that one set of witnesses gave statements under Section 161, Code of Criminal Procedure, in support of the FIR version; namely, Sarvshri Bhagwan Singh, Jagtar Singh and Joginder Singh, while the other set of witnesses; namely Piara Singh, Gurnam Singh and Sarabjit Singh, gave information to the Investigating Agency that Kishan Singh (respondent No.2) was unarmed at the relevant time and was made to sit forcibly by a congregation of 50/60 persons near Cheemo Rest House and Sukhdev Singh was abusing Kishan Singh. It is further evident from the record that both the versions were investigated and it has been concluded that Kishan Singh (respondent No.2) is not involved in the commission of the offence. The conclusion of investigation indicates that while Kishan Singh was going on his Motor Cycle towards his fields, Sukhdev Singh (deceased) and others stopped him on the way and made him to sit with them. This fact came to the knowledge of Nirmal Singh and others through their neighbours. Nirmal Singh, Gurbir Singh and Gurpreet Singh reached at the spot and tried to separate Kishan Singh from the clutches of Sukhdev Singh (deceased). During the scuffle, Nirmal Singh allegedly fired on Sukhdev Singh from his licensed gun, resulting in the death of Sukhdev Singh. From the impugned order, I find that the trial court has also Criminal Revision 2222 of 2008 4 taken into account the fact that Criminal Misc. No.47652-M of 2007 (Kuldeep Singh v. State of Haryana and others) was filed in this Court under Section 482, Code of Criminal Procedure, with a prayer that the Investigating Agency should transfer the investigation to the Crime Branch or the CID, for fair investigation. Notice of the petition was issued, whereupon reply was filed on behalf of the Investigating Agency, in which the stand taken by the Investigating Agency was that Kishan Singh is innocent. Challan against the other three accused was put in court. This court has taken notice of the circumstances and has concluded that “the petitioner's grouse that after verification of the main investigation by one officer of rank of Deputy Superintendent of Police, the investigation was handed over to another officer of the same rank so as to favour the accused, cannot prima facie be sustained”. The contention of the learned counsel for the petitioner to the effect that empty recovered from .32 bore revolver with which Kishan Singh was armed, has matched with the bullet fired from the said revolver, as per the FSL report, and therefore, there is culpability of Kishan Singh, is dehors the controversy in so much as the case of Kuldeep Singh in his cross-examination, in court, when he appeared as PW-1, is that Kishan Singh fired only one shot. No empty was lying at the spot and there was no reloading of weapon. It is, therefore, the admitted case of the complainant-eye witness, who is son of the deceased, that no empty was lying at the spot. It is further the admitted case of the complainant that Sukhdev Singh (deceased) was hit by the shot fired by Nirmal Singh. Matching of the Criminal Revision 2222 of 2008 5 empty, therefore, is not relevant to judge the role of Kishan Singh in the incident. I have also taken notice of the fact that even as per the case of the complainant, the shot fired by Kishan Singh had not hit any person. The order has been passed by the trial court while considering the scope of Section 319, Code of Criminal Procedure, in the context of law, as laid down in Ganesha v. State of Haryana and another, 2007(2) RCR (Criminal) 633, a judgment of the Hon'ble Supreme Court of India in Kailash v. State of Rajasthan and another, 2008(2) RCR (Criminal) 200 and Isham Singh and others v. State of Haryana, 2004(2) RCR (Criminal) 279. I find no illegality in the impugned order. I find that the trial court has considered the law as laid down in Ganesha's case (supra) and observed:- “....... If the person named suggestively forms a part of chain of event leading to the commission of an offence, then summoning no doubt is justified but if it merely enlarges the arena of the number of accused because of the misplaced enthusiasm of a complainant to see all those related to the accused in the dock, then such a practice be discouraged and the Court does not have to unwillingly become a tool in the story of vendetta unleashed by complainant or any other witness. It was further held that the trial court is burdened with a heavy responsibility to ensure at the time of dealing with an application under Section 319 Cr.P.C., that the evidence which has come on record is quality evidence and not merely an allegation on the basis of which such a summoning can be made. .......” The consideration and observation is relevant in the facts and circumstances of this case because Nirmal Singh, the main accused, is the Criminal Revision 2222 of 2008 6 brother of respondent No.2-Kishan Singh, the person sought to be summoned as additional accused. The other accused who are facing trial are also closely related as Gurbir Singh is son of Nirmal Singh, whereas Gurpreet Singh is son of respondent No.2-Kishan Singh. The male members of the family have been implicated. Learned counsel for the petitioner wants this court to re- appreciate the evidence and material to come to a different conclusion, which, ordinarily, is not warranted in revisional jurisdiction. In my considered opinion, the relevant facts and circumstances have been taken into account and the trial court has rightly held that the facts and circumstances of the case do not warrant the summoning of Kishan Singh as an additional accused. In Mahant Amar Nath's case (supra), on which reliance has been placed on behalf of the petitioner, sufficient details in regard to participation of Mahant Amar Nath and others had been given by eye witness-Gobind Ram. As noticed above, the trial court has considered the reasons why Kishan Singh was considered innocent by the Investigating Agency, in the context of the statement of the witness recorded during trial, and it has been concluded that it is an attempt on the part of the complainant to falsely implicate Kishan Singh. In Rakesh's case (supra), it has been held by the Hon'ble Supreme Court of India that the power under Section 319, Code of Criminal Procedure, should be sparingly exercised but where the prosecution witness names certain persons as being involved in a serious Criminal Revision 2222 of 2008 7 crime, their addition as accused in exercise of power would not be unwarranted. It, therefore, follows that it is for the trial court to assess the evidence and the material and to consider whether summoning of the additional accused is warranted or not. In the case in hand, the issue has been considered and I find no illegality in the impugned order. In Lok Ram's case (supra), it has been held that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. The satisfaction of the court, therefore, is important and necessary. As observed earlier, the trial court has recorded its satisfaction that the evidence or material available on the record does not warrant summoning of Kishan Singh. I do not find that the material available on the record warrants exercise of extra ordinary power under Section 319, Code of Criminal Procedure, which is required to be used sparingly and only if compelling reasons exist. Therefore, no illegality can be traced in the impugned order. In Rajendra Singh's case (supra), it has been held that during the course of inquiry or trial, if 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. Relevant aspects having been taken into account by the trial court, the judgment rendered in Rajendra Singh's case (supra) Criminal Revision 2222 of 2008 8 does not help the case of the petitioner as only re-appreciation of the same material is sought at the instance of the revisional court. The fact that it is the admitted case that the shot fired by Kishan Singh had not hit anybody, the fact that there was no empty recovered from the spot, as admitted by the witness and noticed in the earlier part of the judgment; the matter having been investigated by the Investigating Agency to conclude that Kishan Singh was not involved and no incriminating material was found against him, repetition of the allegations made in the FIR version, per se, would not warrant summoning of the additional accused. The scope of Section 319, Code of Criminal Procedure, has been considered by the Hon'ble Supreme Court of India in Mohd. Shafi v. Mohd. Rafiq and another, 2007(2) RCR (Criminal) 762, Kailash v. State of Rajasthan and another, 2008(2) RCR (Criminal) 200, Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983 (1) RCR (Crl.) 73, Michael Machado v. Central Bureau of Investigation, 2000(2) RCR (Criminal) 75 and Krishnappa v. State of Karnataka, 2004(4) RCR (Criminal) 678. The gist of law on the issue is that the evidence produced by the prosecution must satisfy the court that the other accused or those who have not been arrayed as accused have committed the offence. It must appear to the court concerned that the person who is not facing trial has committed an offence. The discretion in this behalf must be judicially exercised only after the court records its satisfaction. There must exist a possibility that the accused so summoned, in all likelihood, would be convicted. This power should be exercised only to achieve criminal Criminal Revision 2222 of 2008 9 justice and the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. It is not the compelling duty of the court to proceed against other persons. All the relevant factors need to be kept in view and the order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. It has been repeatedly held that the power conferred in Court under Section 319 of the Code of Criminal Procedure, should be used very sparingly and only if compelling circumstances exist for taking cognizance against other person against whom action has not been taken. I find that the trial court has taken into account the relevant factors while considering the issue of summoning of respondent-Kishan Singh. The statement of PW-1/Kuldeep Singh, when considered in the totality of facts and circumstances of the case, does not warrant summoning of respondent No.2 under Section 319, Code of Criminal Procedure, as an additional accused. Finding no illegality in the impugned order, the petition is dismissed. It is, however, made clear that in case, during the course of trial, some evidence comes before the trial court which warrants summoning of respondent No.2-Kishan Singh as an additional accused, it shall be open to the trial court to summon him so as to achieve criminal justice. October 24, 2008 ( AJAI LAMBA ) Kang JUDGE