Crl.R.No.1048 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.R No.1048 of 2007 (O&M) Date of Decision: 6.05.2008 Manpreet Kaur &Anr. ...Petitioners Vs. State of Punjab & Anr. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.N.K.Verma and Mr.G.S.Goraya, Advocates, for the petitioners. Mr.K.S.Pannu, AAG, Punjab. Mr.Ashish Gupta, Advocate, for respondent No.2. Vinod K.Sharma, J. (Oral) Crl.M. No.19972 of 2008 Allowed. Annexure P.2 is taken on record. Crl.R. No.1048 of 2007 This Criminal Revision has been directed against the order passed by the learned Judicial Magistrate First Class, Khahar vide which the petitioners have been ordered to be summoned under section 319 of the Crl.R.No.1048 of 2007 (O&M) 2 Code of Criminal Procedure (for short the Code). Learned trial court on 3.5.2007 passed the following order under section 319 of the Code:- “ Heard on the application moved by prosecution under section 319 Cr.P.C. In her statement complainant Manpreet Kaur made before the police complainant Manpreet Kaur categorically named the accused Varinder Singh and Manpreet Kaur. When the complainant stepped into the witness box as PW 1 she again categorically testify that the accused Varinder Singh and Manpreet Kaur participated in the commission of crime. In view of these facts prima facie case is made out against the accused Varinder Singh and Manpreet Kaur for summoning under sections 406, 498-A, 120-B of the IPC. Let these accused be summoned for 15.06.2007.” Learned counsel for the petitioners by placing reliance on the judgment of Hon'ble Supreme Court in the case of Mohd.Shafi Vs. Mohd. Rafiq and another 2007 (2) RCR (Criminal) 762 contends that impugned order cannot be sustained as the court could summon a person as an additional accused only when it is satisfied that the persons to be summoned are likely to be convicted and the said opinion cannot be formed unless and until the witnesses are subjected to cross-examination. Crl.R.No.1048 of 2007 (O&M) 3 Learned counsel appearing on behalf of the respondents, however, supports the order by placing reliance on the judgment of Hon'ble Supreme Court in the case of Rajendra Singh Vs. State of U.P. & Anr. 2007 (3) RCR (Criminal) 1021, wherein Hon'ble Supreme Court has been pleased to lay down that the court has discretion to proceed or not to proceed against a person. The proposition of law laid down in the case of Rajendra Singh Vs. State of U.P. & Anr. (supra) is binding. However, it may be noticed that discretion of the can only be exercised if there is admissible evidence on record on the basis of which an opinion can be formed that the accused is involved in the case and the possibility of his conviction is there. Learned counsel for the respondents thereafter placed reliance on the judgment of this court in the case of Kartar Singh Vs. State of Punjab 2008 (1) RCR (Criminal) 592 to contend that an additional accused can be summoned even in the absence of cross-examination of witnesses. However, this plea of the respondents cannot be accepted in this case as the judgment in the case of Mohd.Shafi Vs. Mohd. Rafiq and another (supra) was held to be not applicable in the said case. However, it may be noticed that in the case of Kartar Singh Vs. State of Punjab (supra) the court was pleased to summon the witnesses on the basis of evidence already on record and not on an application made under section 319 Cr.P.C. In the present case the Crl.R.No.1048 of 2007 (O&M) 4 petitioners have been summoned on the basis of an application made under section 319 Cr.P.C. on the plea that the witnesses examined in the court have led evidence against the petitioner which in the absence of cross- examination is not to be taken into consideration by the court. Thus, the law laid down in the case of Mohd.Shafi Vs. Mohd. Rafiq and another (supra) would apply to the facts of the present case. Consequently, this revision petition is allowed. The impugned order is set aside. However, it will be open to the learned Magistrate to summon the petitioners after cross-examination of the witnesses if in the opinion of the learned Magistrate any offence is made out against the petitioners. (Vinod K.Sharma) 6.5.2008 Judge rp