Criminal Revision No.2637 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2637 of 2008 Date of decision 23.11.2010. Kundan Singh ...... Petitioner. versus State of Haryana and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Rahul Ahuja, Advocate for the petitioner. Mr. Kartar Singh, DAG, Haryana Mr. N.C.Doabia, Advocate for respondent Nos.2 and 3. K.C.PURI, J. This is a revision petition preferred by the complainant against the order dated 8.9.2008 passed by learned Additional Sessions Judge, Faridabad vide which the application preferred by the complainant- Kundan Singh for summoning accused Ramjeet son of Shanker Yadav and his wife Savitri as an additional accused in case FIR No.174 dated 26.5.2007 under Sections 364-A of the Indian Penal code registered at Police Station Sector 55, Faridabad, was dismissed. Briefly stated the case of the prosecution is that son of the complainant Gauri Shanker aged 13 years was student in Class VII. Criminal Revision No.2637 of 2008 2 Statements of PW-1 Kundan Singh and his wife Bhagwani (PW-3) were recorded in a State case pending against one Sayeed Alam Lari @ Babu son of Nafis Seikh Caste Seikh resident of Bombay. Both of them have stated that their neighbour Sanjay had come to call their son Gauri Shanker and has stated that his father Ramjeet was calling Gauri Shanker. Sanjay took their son Gauri Shanker to his house. After some time Bhagwani went to the house of Sanjay and saw that his son was sitting with Sanjay and his parents. After two hours, she had again gone there and met mother of Sanjay, who told her that all three of them had gone to Ballabgarh and would return back by night. PW-3 kept on making enquiries from mother of Sanjay, who kept on assuring that they would return back and in this way three- four days passed. Bhagwani narrated the occurrence to PW-1 Kundan Singh, They have searched. It is further stated by both of these witnesses that Sanjay, Ramjeet and Savitri are involved in kidnapping of their son Gauri Shanker. They have further stated that a missed call was received on mobile phone of Bhagwani on 26.5.2007, which was later on found to be of Sayeed Alam who made a demand of Rs.1,50,000/- for releasing his son. The said Sayeed Alam was later on traced and arrested and was facing trial in the above said FIR under Section 364-A, IPC in which the present application has been moved. The learned trial court after taking into account the earlier statement of the witnesses and other evidence, declined the application vide impugned order dated 8.9.2008. Criminal Revision No.2637 of 2008 3 Feeling dis-satisfied with the above said order, the present revision petition has been filed. Learned counsel for the revisionist has submitted that Gauri Shanker was minor and without active connivance of both the respondents Sanjay, Ramjeet and Savitri, the kidnapping could not have taken place. In the earlier stage, the name of these accused was not mentioned as they were neighbourer and the petitioner has no suspicion against them. However, from the receipt of telephone from Sayeed Alam, it is clear that respondent Nos.2 and 3 are actively involved in the occurrence. At the stage of summoning, the Court has to see whether the person sought to be summoned could be tried with the other accused. Sayeed Alam has been ultimately convicted vide judgment dated 30.1.2009 passed by Shri Parveen Kumar, learned Additional Sessions Judge, Faridabad. So, prayer has been made for setting aside the impugned order and persons mentioned in the application may be summoned. To fortify his argument, learned counsel for the revisionist relied upon the following authorities :- (1.) Panchadia Jaya vs. State of Orissa 1998 Crl.L.J. 4760 ; (2) Y.Saraba Reddy vs. Puthur Rami Reddy and anr. 2007 (2) RCR (Criminal ) 1014 ; (3) Mohan Singh vs. State of U.P. and others 2004 Crl.L.J. 2684 ; (4) Kishun Singh and ors vs. State of Bihar 1993(1) RCR 647 ; Criminal Revision No.2637 of 2008 4 (5) Lok Ram vs. Nihal Singh 2006(2) RCR (Criminal) 707; (6) Rajendra Singh vs. State of U.P.& Anr. 2007(3) RCR (Criminal ) 1021 . Learned counsel for the contesting respondents has supported the order of the trial Court. I have considered the submissions made by both the sides and have gone through the records of the case. Learned counsel for the petitioner is fair enough to concede that at the initial stage, the name of respondent Nos. 2 and 3 did not figure in the statement under Section 161 Cr.P.C., and also in supplementary statement of Kundan Singh complainant. The petitioner has sought trial of respondent Nos.2 and 3 along with Sayeed Alam and according to the petitioner said Sayeed Alam has been convicted vide judgment dated 30.1.2009. A young boy of 13 years old namely Gauri Shanker has been kidnapped for ransom and it is a serious offence. Everyone has sympathy with the complainant and his wife but the question arises in the present petition is whether in these circumstances, respondent Nos.2 and 3 can be ordered to face trial under Sections 364-A, IPC or not ? The trial Court, after weighing the statements of PW-1 Kundan Singh and his wife Bhagwani (PW-3) reached to the conclusion that no case is made out for summoning of respondent Nos.2 and 3 as an accused. Whether that finding is erroneous or liable to be set aside has to be decided by this Court. Summoning a person as an accused is a serious matter and the Apex Court in authority Y.Saraba Reddy's case (supra) relied upon by the learned Criminal Revision No.2637 of 2008 5 counsel for the petitioner himself held so. It has been held as under :- “Criminal Procedure Code, Section 319 – Summoning a person as additional accused. Trial Court has jurisdiction to add any person as accused at any stage of proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the trial. Further held :- (1) Trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. (2) “evidence” in Section 319 contemplates that evidence of witnesses given in Court. (3) It is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist. (4) It will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 2006 (2) RCR (Crl.) 707 (SC) relied.” No doubt, the evidence taken in the Court has to be considered for arriving at the conclusion whether the person sought to be summoned Criminal Revision No.2637 of 2008 6 can be arrayed as accused but the fact remains that power under Section 319 Cr.P.C. is an extraordinary power and these powers should be used springily and only in compelling reasons. Till the filing of the challan, there was no accusation against the respondent Nos.2 and 3. Complainant Kundan Singh (PW-1) and his wife Bhagwani (PW-3) have made improvements to the effect that respondent Nos.2 and 3 were present when Bhagwani went to their house and that when she again visited their house, it was disclosed that respondent No.2 and Sanjay had gone to Ballabgarh. The respondent Nos.2 and 3 cannot be ordered to be summoned merely on the ground that they are parents of Sanjay. In supplementary statement of Kundan Singh recorded on 5.7.2010 also there is no accusation against the respondent No.2 and 3. Authority Panchadia Jaya's case (supra) by Hon'ble Orissa High Court is distinguishable as in that case there were no allegation or proof of bias or illegal motive either with the prosecutrix or the witnesses. In the present case, son of respondent Nos.2 and 3 is already accused in the case in question, The complainant seems to have put pressure by summoning all the family members in the case. In authority Mrs. Nachal's case (supra), it has been held that evidence mentioned in Section 319 Cr.P.C. means the evidence produced before the Court. That authority is however, distinguishable as in that case complainant has specifically named the accused that he has snatched the amount of Rs.20,000/-. Authority Mohan Singh's case (supra) is distinguishable as in that case, the additional accused was summoned on the testimony of injured Criminal Revision No.2637 of 2008 7 witnesses, who made specific allegation against him. Authority Kishan Singh's case (supra) deals with the scope of discretion power under Section 193 IPC and 319 Cr.P.C. It has been laid down that power under Section 193 IPC can be exercised on the basis of material on the file whereas power under Section 319 Cr.P.C. can be invoked on the basis of allegation produced in the court. However, the fact remains that complicity of the person sought to be produced on the file for summoning him as an accused according to the said rule. In authority Lok Raj's case (supra), the same principle of law has been laid down in authority Y.Saraba Reddy's case (supra) with the addition that such power can be exercised at any stage of the trial. However, in that ruling, it has been further held that there is no compelling duty on the Court to proceed against other person merely on the ground that some evidence has come on record implicating the person sought to be added as an accused. Such an order of summoning should not be mathematically passed. In authority Rajinder Singh's case (supra) it has been held that the person, who has committed the offence but not arrayed as accused, Court has the discretion to proceed or not to proceed against that person. So, from the bear reading of the said ruling, it is clear that if the Court comes to the conclusion that additional accused seems to have committed the offence only then he should be summoned to face trial. In authority Om Parkash & others vs. State of Haryana 2007 (1) R.C.R. (Criminal ) 632 relied upon by the learned counsel for the Criminal Revision No.2637 of 2008 8 respondent, this Court has held that it is not enough that Court entertained some doubt from the evidence about the involvement of the another person sought to be summoned as an additional accused, it should appear to the Court in the evidence that person sought to be summoned as an accused has committed the offence for which he has been sought to be summoned. This authority is based upon the decision of Hon'ble Supreme Court in case Michael Machado & Anr. vs. Central Bureau of Investigation & Anr. 2000 (2) R.C.R. (Criminal) 75. In authority Sarabjit Singh vs. State of Punjab 2009(3) RCR (Criminal) 388, the Hon'ble Apex Court has held that person should not be summoned to face trial on mere conjectures. A person should be summoned only when Court finds that evidence on record is such which would reasonably lead to conviction of person sought to be summoned. Again Hon'ble Supreme Court in authority Brindaban Das and others vs. State of West Bengal 2009(1) RCR (Criminal) 672 has held that a person can be summoned as additional accused if from the evidence come before it, there were chances of conviction. However, in the present case, I am of the considered view that such type of evidence is missing. In view of the above discussion, the revision petition is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE November 23, 2010 sv