CRIMINAL REVISION NO.2419 of 2009 :{ 1 }: HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 19, 2011 Ajay and another .....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. Baldev Singh, Sr.Advocate with Mr. Sudhir Sharma, Advocate, for the petitioners. Mr. Saurabh Mohunta, DAG, Haryana, for the State. **** RANJIT SINGH, J. Aggrieved against the order passed by Additional Sessions Judge, Bhiwani, to summon the petitioners as additional accused under Section 319 Cr.P.C., the petitioners have filed two revision petition bearing Nos.2419 of 2009 Ajay and another Vs. State of Haryana and another) and 2270 of 2009 (Rattan Singh and others Vs. State of Haryana and another), which are being disposed of by this common order. CRIMINAL REVISION NO.2419 of 2009 :{ 2 }: FIR No.70 dated 21.3.2008 was registered under Section 302, 427, 341 IPC and under Section 27 of the Arms Act at Police Station Badhra against various accused persons. During the course of trial, Raj Kumar, PW1 son of Ramphool and Dhanphool Singh son of Nathu Ram have appeared as witnesses and have given evidence that Ajay son of Rattan, Raj Kumar son of Rattan Singh, Pardeep son of Rattan, Rattan son of Sheo Chand, Bhag Chand son of Amar Singh and Jai Parkash son of Ishwar have committed murder of Anil alongwith Vijay son of Rattan, who is already facing trial in this case. The police had only challaned Vijay and had left the remaining accused. On the basis of this evidence given by the witnesses before the Court, the Public Prosecutor filed an application for summoning all these persons as additional accused. It is also stated that the persons so named now and sought to be summoned, were mentioned in the First Information Report as well as in the statements of eye witnesses recorded under Section 161 Cr.P.C. According to the Public Prosecutor case was made out for adding these persons as additional accused under Section 319 Cr.P.C. Reply to this application was filed by the defence, pleading that the statements made by Raj Kumar and Dhanphool are false and frivolous and that Ajay, Raj Kumar, CRIMINAL REVISION NO.2419 of 2009 :{ 3 }: Pardeep, Rattan Singh, Bhag Chand and Jai Parkash are all innocent and had committed no offence, as was found by the Investigating Officer. It is stated that they had nothing to do with the crime. It is also pointed out that only one pistol was allegedly used in the crime and except for injury caused by fire arm, there is no other injury by any other weapon on the person of Anil, deceased. As per the stand of the defence, Dhanphool is the father of deceased Anil and in his statement recorded under Section 174 Cr.P.C., he has not mentioned the name of any of the persons, who are sought to be summoned. The defence accordingly attributes ulterior motive besides the malafide intention to falsely implicate Vijay etc. It is noticed that on a previous occasion, application under Section 319 Cr.P.C. was moved by the prosecution but the same was dismissed as at that stage prosecution witnesses were yet to be cross-examined. The prosecution was given liberty to file another application after the examination of the material witnesses. The prosecution accordingly has moved the present application on the basis of evidence now available on record. The statement made by Raj Kumar, PW1, is placed on record and would show that this murder has taken place on account of dispute, which arose on account of inaugurating a cricket tournament organised in the village. CRIMINAL REVISION NO.2419 of 2009 :{ 4 }: Late Anil was invited to inaugurate the tournament being Sarpanch of the Village. Raj Kumar, PW1, is his cousin. He had gone with Anil for inauguration of the tournament accompanied by Dhanphool, father of late Anil and Uncle of Raj Kumar. Sunil brother of Anil and Mukesh, Driver of the Vehicle, had also accompanied them in a Swift Car. When after getting down from their vehicle, they started walking towards the play ground, Ajay, Vijay, Raj Kumar, Pardeep, Bhag Chand, Rattan Singh and Jai Parkash came in front of them and obstructed their passage. These persons announced that they will inaugurate the tournament. In response, Anil stated that he was invited to inaugurate the tournament being Sarpanch and he will do so. Raj Kumar and Pardeep then caught hold of his hands, when Vijay took out pistol from his pocket and fired two shots on Anil. Sunil and Mukesh then caught Vijay, whereafter Ajay took the same pistol from Vijay and fired two other shots on Anil. Anil fell down on the ground and all the accused persons fled from the spot in their Balaro. The witnesses alongwith other lifted Anil and put him in the Car to take him to Hospital. Enroute, the accused hit their Balaro vehicle into the car from the front side. The persons accompanying Anil came out and the accused persons also got down from Balaro vehicle. The witnesses pleaded with the accused to allow them to proceed to the hospital so as to save the life of Anil CRIMINAL REVISION NO.2419 of 2009 :{ 5 }: but the petitioners allegedly shouted that enemy was still alive, who had not allowed them to become Sarpanch of the village. Rattan Singh, Bhag Chand, Jai Parkash then raised lalkara and some shots were again fired on Anil. Pardeep allegedly came towards the swift car and fired two shots on Anil on his head. These persons then allegedly fled away in their Balaro, Another vehicle was arranged to take Anil to Bhiwani but he succumbed to his injuries, while enroute to hospital. The motive for doing all this is alleged to be the fight for becoming Sarpanch of the Village where wife of late Anil had defeated the mother of Vijay and now Anil had been elected as Sarpanch by defeating his opponent. Dhanphool has also made statement to corroborate the evidence given by Raj Kumar, PW1. On the basis of this and other evidence, all the petitioners have been summoned, which they have impugned before this Court through the present revision petition. Learned counsel for the petitioners has highlighted that Anil had received only two injuries and two bullets were recovered. Therefore, the prosecution version regarding firing of six shots in all is apparently false. The counsel accordingly pleads that FIR as well as the evidence is a concocted version and in this regard has made reference to the statements of Vijay and Dhanphool recorded during inquest proceedings. It is also pointed out that the CRIMINAL REVISION NO.2419 of 2009 :{ 6 }: petitioners have moved an application about their false implication, when the case was thoroughly investigated by the police, which found Rattan Singh, Jai Parkash, Raj Kumar and Bhag Chand as innocent and not involved in the offence. The report under Section 173 Cr.P.C. was accordingly filed, putting their names in column No.2. Learned Senior counsel submits that Section 319 Cr.P.C. is an extra ordinary provision and is to be used sparingly only when compelling reasons exist. Reference is made to the case of Michael Machado and another Vs. Central Bureau of Investigation and others, 2000 SCC (Criminal) 309 to urge that mere suspicion is not enough to summon additional accused and such discretionary power should be exercised judiciously. Reference is also made to the case of Sarabjit Singh and another Vs. State of Punjab and another, 2009 (3) RCR (Criminal) 388, where the Court has observed that person should not be summoned, even if prima-facie case was made out and he can be so summoned, when the evidence on record would reasonably lead to conviction of a person sought to be summoned. I have examined the submissions made by learned counsel for the petitioners in the light of law as settled. It is to be seen if the evidence which has now been led before the Court and as referred to above would satisfy the requirement of law for summoning the petitioners as CRIMINAL REVISION NO.2419 of 2009 :{ 7 }: additional accused or not. To summon a person to face trial under Section 319 Cr.P.C., the court must have reasonable satisfaction from the evidence already collected that there is a prospect of conviction. In Michael Machado's case (supra), it was held as under:- “The basic requirements 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, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the courts 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 as tried along with the already arraigned accused.” This Court after noticing various judgements i.e. Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors., 1983 (1) RCR (Crl.) 73 and Krishnappa Vs. State of Karnataka, 2004(7) JT 509, in Criminal Revision No.1605 of CRIMINAL REVISION NO.2419 of 2009 :{ 8 }: 2006 (Harbhajan Singh Vs. State of Punjab), decided on 14.2.2007, held as under: “The analysis of the judgment aforementioned would show that discretion regarding summoning a person as an additional accused is not to be exercised in routine. This should be exercised sparingly and when done should be by passing a reasoned order. This Section leaves a discretionary power with the Court and is not to be exercised when some doubt is entertained but should be so done after reasonable circumstances emerge from the evidence already collected. It has also been held that there is no compelling duty on the court to proceed against any person. Suspicion alone is not sufficient to summon the accused and he should be so summoned when there is reasonable prospect of convicting him of the offence charged. As already noticed, Hon'ble Supreme Court has observed that power under this provision is to be exercised to advance the cause of criminal justice.” Noticing the evidence now led in the light of above-mentioned law, a view is possible that there is a reasonable prospect of conviction of the petitioners, who have now been summoned. Ofcourse, this evidence would finally be evaluated alongwith other evidence led by the prosecution and then the Court would decide whether to place reliance on the same or whether this evidence is CRIMINAL REVISION NO.2419 of 2009 :{ 9 }: trustworthy or not. That evaluation is not to be done at this stage. At this stage, it is only required to be seen if this evidence can be said to be such which would raise a reasonable prospect of conviction of the petitioners in the light of law laid down in Michael Machado's case (supra) and other judgements noticed above. The evidence apparently would satisfy this legal test. I am, therefore, not inclined to interfere in the order passed by the Court and would dismiss both the revision petitions. Any observation made above is for disposing of the present revision petition should not be taken to construe that this Court has expressed any opinion on merits of the case or about the nature and quality of evidence. October 19, 2011 ( RANJIT SINGH ) khurmi JUDGE