Criminal Revision No.2635 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: December 09, 2008 Mann Singh & others .....Petitioners VERSUS State of Punjab & 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.R.S.Rai, Senior Advocate with Mr.Gautam Dutt, Advocate, for the petitioners. **** RANJIT SINGH, J. On an application moved by the prosecution, petitioners Kulwinder Singh, Nirmal Singh, Mann Singh and Jaspreet Singh have been summoned as an additional accused to face prosecution and trial for an offences under Sections 302, 307, 341, 323, 324, 325, 148, 149 IPC and 25 of Arms Act. Nine persons were already facing the prosecution for the said offences. The case was registered on a statement made by one Prabhu son of Chhota Singh, who had, inter-alia, stated that while he was lying down, Kulwinder Singh, Mann Singh (petitioners), Harpal Criminal Revision No.2635 of 2008 (O&M) : 2 : Singh and Amritpal Singh gave gandasa blows from its right side, which hit him on his body. Harpal Singh and Amritpal Singh are already present as accused before the court, whereas Kulwinder Singh and Mann Singh are the petitioners, who have now been summoned. Prabhu further stated that Jaspreet Singh petitioner also gave a gandasi blow from the right side and blunt side, which hit Bahadur Singh, Karnail Singh and other injured. He also attributed gandasa blow to Nirmal Singh petitioner on the body of Bahadur Singh. The petitioners, however, after investigation were found innocent and their names shown in column No.2. Complainant Prabhu has now appeared as a first witness for prosecution. He has now named all the petitioners and has stated that they were armed with gandasas and came to the scene along with the other accused. As per evidence of PW-1, Nirmal Singh gave a gandasa blow to Bahadur Singh. Kulwinder Singh gave gandasa blow on the head of Bahadur Singh, Man Singh hit on the head of Karnail Singh with gandasa. Harpreet Singh is the one who had expired in the hospital. Additional Sessions Judge, Sangur, thus, noticed that injuries have now been attributed to petitioner Nirmal Singh, Kulwinder Singh, Mann Singh and Jaspreet Singh is shown present armed with gandasa. So, they are liable to be summoned, especially so when offence under Sections 148 and 149 IPC is also alleged. Mr.R.S.Rai, learned Senior counsel representing the petitioners would submit that the court was not justified in adding the petitioners as an additional accused as the statement of the complainant, which is now recorded as evidence, is only a re-iteration Criminal Revision No.2635 of 2008 (O&M) : 3 : of the allegations made in the complaint and this cannot be considered as an additional evidence. The counsel would further submit that the court cannot summon the accused on the basis of this statement alone which was already considered by the police. In support of his submission, he has made reference to the case of Hukam Chand and another Vs. State of Haryana and another, 2007(3) RCR (Criminal) 141. The court in this case has viewed that for summoning an accused on the basis of a statement alone which was already considered by the police is not sufficient and there has to be some evidence which would indicate the complicity of the persons who are sought to be summoned. It is further observed that mere statement of complainant, ipso facto cannot form the basis of summoning of persons under Section 319 Cr.P.C. The standard of evidence and material that would be required to summon any person as an additional accused by now is rather well settled. In cases of Joginder Singh Vs. State of Punjab, (1979) 1 SCC 345, Michael Machado Vs. Central Bureau of Investigation, 2000(2) RCR (Criminal) 75, Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi, 1993(1) RCR (Cri.) 73 and Krishnappa Vs. State of Karnataka, 2004(4) RCR (Criminal) 678, this standard has been well defined. What should be the nature of evidence to add a person as an additional accused has been a matter of consideration before the Hon'ble Supreme Court in the cases noted above and in some other cases. In Joginder Singh's case (supra), the Hon'ble Supreme Court has inter-alia held that the court will have power to Criminal Revision No.2635 of 2008 (O&M) : 4 : add any person, not accused before it, but against whom there appears during trial sufficient indication for his involvement in the offence. In Michael Machado's case (supra), it has been held that the court must have reasonable satisfaction from the evidence led that other person has committed an offence and there is prospect of his conviction. In Mohd.Shafi Vs.Mohd.Rafiq & Anr., 2007(2) RCR (Criminal) 762, the court had observed that such power can be exercised only if the court is satisfied that the accused so summoned is in all likelihood would be convicted. In a recent decision of the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab & Ors., 2008(4) RCR (Criminal) 947, the court noticed all these judgements and has observed that test formulated in Mohd.Shafi's case substantially curtailed discretionary powers of the court conferred under sub-section (1) of Section 319 Cr.P.C. The court has accordingly found that matter requires fresh consideration and has referred the following two issues to a larger bench:- “(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete?. (2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?.” Criminal Revision No.2635 of 2008 (O&M) : 5 : While referring the issues to the larger bench, the Hon'ble Supreme Court in the case of Hardeep Singh (supra) was of the view that the observations in Mohd.Shafi's case (supra) do not appear to be inconsonance with the statutory provisions and the previous decisions of the court. It has further observed that bare reading of sub-section (1) of Section 319 would leave no room of doubt what the section requires. The Section states, it must appear, to the court from the evidence that any person not being the accused has committed an offence for which such persons should be tried along with other accused. In another recent decision in the case of Rajendra Singh Vs. State of U.P. & Anr. 2007(3) RCR (Criminal) 1021, one judge of the Division Bench while agreeing with the reasoning given in the case had spoken his mind in regard to Section 319 Cr.P.C. The learned Judge has emphasised the word “appears” used in the section to say that court need not be satisfied that the person has committed an offence and it need only appear to it that he has committed an offence. Whatever may be the standard laid down by the Hon'ble Supreme Court for summoning a person as an additional accused, but this can only be done on the basis of evidence that is led and not on any other material. Even in Rajendra Singh's case (supra), the Hon'ble Supreme Court observed that statement of the witnesses recorded under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The order passed by the High Court, wherein it had relied upon inadmissible Criminal Revision No.2635 of 2008 (O&M) : 6 : evidence to set aside the order passed by the Sessions Judge was accordingly set-aside by the Hon'ble Supreme Court. It is also observed that no finding on the plea of alibi can be recorded by the High Court for first time in a petition under Section 482 Cr.P.C. It is also observed that the burden to prove the plea of alibi lay upon an accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C. As has been observed by the Supreme Court, the legislature apparently has left discretion to the trial Court to summon or not to summon additional accused while exercising power under Section 319 Cr.P.C. The Court is given a judicial discretion which is to be exercised by the judicially trained mind and accordingly it would basically be for a Court deciding such an application which has to take a decision on the basis of law and the evidence. Thus, the exercise of discretion under the section undoubtedly is a judicial discretion and judicially trained mind is to exercise it and it is the trial court deciding such an application which has to take a decision on the basis of law and the evidence. From this and the plain language of Section 319 Cr.P.C., it can be said that what is to be considered is an evidence and not a statement. If any statement made before police and considered by it to give finding is to be given primacy, then the provisions of Section may become redundant. To somewhat similar effect, observations are made by Hon'ble Supreme Court in the case of Y.Saraba Reddy Vs. Puthur Rami Reddy & Anr., 2007(2) RCR (Criminal) 1014. In this case, it is observed:- Criminal Revision No.2635 of 2008 (O&M) : 7 : “If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IO's satisfaction should be given primacy is unsustainable.” This court in Rajbir Singh Vs. State of Haryana and others, 2006(2) I.L.R. Punjab and Haryana 102 has already observed that the statement on oath would obviously stand on higher pedestal than a statement made before the police and, therefore, is to be assigned due primacy. If the evidence given by a witness is to be ignored only on the ground that same is a repetition of what was stated by the witness and considered by the investigating agency to say that person is not to be added as an accused, it would amount to giving primacy to the police which cannot be done in view of Y.Saraba Reddy's case (supra). The Hon'ble Supreme Court has clearly held that the conclusion that the IO's satisfaction should be given primacy is un-sustainable. Each case is to be decided on the facts of its own. An authority has to be understood in the context of facts based on which the observations therein are made. Criminal Revision No.2635 of 2008 (O&M) : 8 : What is alleged against the petitioner would satisfy the tests of standard as laid down by the Supreme Court for summoning any person as an additional accused. Each petitioner has been assigned a direct role in causing injuries. They were named by the complainant in the FIR. He has re-iterated those allegations before the court, which has now taken the shape of evidence. Apart from other offences, the accused are facing prosecution for offences under Sections 148 and 149 IPC as well. This fact has also been noted by the trial court. In Quinn Vs. Leathem, (1901) A.C.495, it is stated that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that the case is only an authority for what it actually decides. In Hukam Chand's case (supra) there is no indication if there was any direct allegation against the petitioners therein, who were sought to be summoned as is in the case of the present petitioners and, thus, the ratio of the said case may not apply to the facts and circumstances of the case. Accordingly, I am not inclined to exercise revisional jurisdiction to interfere in the impugned order and would, thus, dismiss the petition. December 09, 2008 ( RANJIT SINGH ) ramesh JUDGE