IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. R. No.468 of 2010 (O&M) Date of Decision:22.12.2010 Harbans Kaur .... Petitioner Versus State of Punjab and others .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Amrik Singh Kalra, Advocate for the petitioner. Mrs. Rajni Gupta, Addl. A.G. Punjab. Mr. Mohinder Kumar, Advocate for respondents No.2 and 3. **** 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. The brief facts of the case are that on 15.5.2009, a case was registered on the statement of Smt. Harbans Kaur against Gurpeet Singh, Jaswinder Kaur and Davinder Singh under Section 308/34 IPC at Police Station Nakodar. As per prosecution version on 13.5.2009 at 8 P.M., when Tirath Singh son of the complainant Harbans Kaur along with his friend Kulwant Singh @ Kanta was returning to village after doing the routine work and near the dairy of Sonu, at that time, Gurpreet Singh @ Sonu armed with Iron pipe, Jaswinder Kaur empty handed and Davinder Singh armed with Kirpan met him and in her presence, abovsaid Gurpreet Singh gave a iron pipe blow hitting on the left side of head of Tirath Singh. While in fallen condition, Jaswinder Kaur and Davinder Singh gave invisible blows to the son of the complainant and on raising raula of Mar Ditta-Mar Ditta, all the accused ran away from the spot with their weapons. Tirath Singh injured was taken to civil Hospital Nakodar, from where he was referred to PGI because of serious injury on his head. According to Crl. R. No.468 of 2010 -2- investigation conducted by the police, the investigating officer received # MLRs of Tirath Singh son of the complainant, Gurpreet Singh and that of Jaswinder Kaur. As per MLR of Tirath Singh, he received one injury on the head and the same was kept for surgical opinion, whereas, Gurpreet Singh received 2 simple injuries caused with sharp edged weapons and Jaswinder Kaur received one simple injury with blunt weapon and was advised for X- ray. A cross case under Sections 324,323,148,149 IPC was also registered against the complainant party on the statement of Jaswinder Kaur accused named in the FIR. After investigation, challan was filed only against Gurpreet Singh whereas Harbans Kaur and Davinder Singh were found innocent. However, after framing of charges under Section 308 IPC against Gurpreet Singh, Harbans Kaur complainant appeared in the witness box as PW-1 and she reiterated the allegations before the trial Court against all the three accused i.e. Gurpreet Singh, Jaswinder Kaur and Davinder Singh. After recording the evidence of PW-1 Harbans Kaur, the complainant moved an application under Section 319 Cr.P.C. for summoning Jaswinder Kaur and Davinder Kumar as additional accused. The said application was dismissed by the Additional Sessions Judge, Jalandhar on 26.11.2009. Accordingly, the present revision petition has been filed impugning the said order. Learned counsel for the petitioner while challenging the same contended that the complainant has categorically stated in her statement on oath while appearing before the learned trial Court and examined as PW-1 that Jaswinder Kaur had exhorted the other co-accused to catch hold of Tirath Singh and she also caused invisible injuries besides raising lalkara. It was further argued that the presence of Jaswinder Kaur at the time of Crl. R. No.468 of 2010 -3- occurrence stand proved and is evident from the cross version and the injuries on the person of Jaswinder Kaur. It is further contended that the learned trial Court ignored the material fact that it was Davinder Singh who was having land dispute with the complainant/petitioner Harbans Kaur as per facts of FIR and thus he had strong motive to cause harm to Tirath Singh on his head. It was further submitted that no animus has been alleged against Gurpreet Singh in the FIR though the head injury of Tirath Singh was caused by him and he is already facing trial. Learned counsel for respondents No.2 and 3, however, vehemently opposed the argument raised by learned counsel for the petitioner and stated that the incident has not occurred the way as projected by the petitioner-complainant. In fact, two incidents took place at different places. The inquiry was conducted by visiting the spot and recording the statements of the witnesses. As per the enquiry, rather, the son of the complainant i.e. Tirath Singh and Kulwant Singh @ Kanta tried to tress pass into the house of Jaswinder Kaur and caused injuries to her and her son Gurpereet Singh. Due to this, Jaswinder Kaur had sustained injuries on which cross case under Sections 323,324,452,34 IPC was registered against Tirath Singh and Kulwant Singh @ Kanta etc. Learned counsel for the parties are heard at length. It is important to mention here that the accused have built up their case in the cross version that Gurpreet Singh and Jaswinder Kaur were caused injuries by the complainant party and suggestion to this effect was put in the cross examination to complainant Harbans Kaur. It is evident from the above that the injuries of Jaswinder Kaur Crl. R. No.468 of 2010 -4- have been duly explained as a cross case was registered against Tirath Singh and Kulwant Singh @ Kanta. Moreover, from the cross case put forward, the injuries do not appear to have been inflicted as presented by the prosecution. In fact, as per the investigation, the son of the complainant i.e. Tirat Singh tress passed into the house of Jaswinder Kaur and Gurpreet Singh and inflicted injuries on them. Thus, the injuries itself do not prove the presence of Jaswinder Kaur at the place of occurrence in the facts of the present case and is not sufficient to come to the conclusion that she had also caused injuries to the complainant party. In fact, Gurpreet Singh is the son of Jaswinder Kaur. Jaswinder Kaur had received injuries at the hands of the complainant party. It, therefore, is probable that Gurpreet Singh got agitated and in order to take revenge with respect to the injuries caused to his mother, went ahead and assaulted the complainant party. Argument of the learned counsel for the petitioner with respect to the participation of Davinder Singh also can not be sustained in view of the fact that Davinder Singh was shown as armed with Kirpan at the time of the occurrence, whereas, injuries caused by him are stated to be invisible and the weapon was not even used. 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 Crl. R. No.468 of 2010 -5- 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 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 Crl. R. No.468 of 2010 -6- 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 Apex Court in the case of Brindaban Das and otahers v. State of West Bengal reported as 2009(1) RCR (Criminal) 672, held, in para 19 and 20 as under: “19. The fulcrum on which invocation of Section 319 Cr.P.C. Rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. 20. In the instant case, on the quality of the evidence adduced by the prosecution as far as the appellants are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure a conviction against the appellants. The evidence which seeks to connect the appellants with the commission of the offence are hearsay in nature. Section 319 Cr.P.C. Contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. The Crl. R. No.468 of 2010 -7- law in this regard was explained in Ram Kishan Rastogi's case (Supra) and as pointed out by Mr. Ghosh, consistently followed thereafter, except for the note of discord struck in Rajender Singh's case (supra). It is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not named in the charge sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction” And in the fact of that case, the Court held in para 21 as under: “21. Since in the present case, except for a statement in the FIR that the complainant strongly believed that the murder of her father was pre-planned and there were many conspirators involved, there is no direct evidence of the complicity of the appellants in the incident, it would not be proper to subject the appellants to trial by invoking the provisions of Section 319 Cr.PC.” Applying the test as laid down by the Apex Court, the present revision petition deserves to be dismissed as the evidence on record is not such as would reasonably lead to the chances of conviction of respondents No.2 and 3. The statement of the complainant Harbans Kaur is only a repetition of the FIR. Even as per the statement of Harbans Kaur, Jaswinder Kaur and Davinder Singh are stated to have given invisible injuries even though, Davinder Singh was stated to have been armed with Kirpan. As Crl. R. No.468 of 2010 -8- such, the statement of the complainant is not sufficient to summon the present petitioner under Section 319 of the Cr.P.C. No merit. Dismissed. However, nothing observed herein above shall be construed as an expression of opinion on the merits of the case. 22.12.2010 ( NIRMALJIT KAUR ) rajeev JUDGE