Crl. Rev. No.929 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No.929 of 2011 Date of Decision: 25.04.2011 Harwinder Singh ....Petitioner Versus State of Punjab & others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Deep Singh, Advocate for the petitioner. ***** 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. This is a revision against the order dated 09.02.2011 passed by the Sessions Judge, Mansa, vide which, the application under Section 319 of the Cr.P.C has been dismissed. It was contended that the complainant-Harwinder Singh deposed in the witness box and categorically stated that Jaspal Kaur and Sukhpal Kaur raised lalkara and gave abuses. Hence, the respondent should have been summoned under Section 319 of the Cr.P.C. Secondly, the basic requirement for invoking the section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other persons who is not arrayed as an accused in that case, has committed an offence for which that person could be tried together with the accused already arrayed. In other words, the court must Crl. Rev. No.929 of 2011 2 have reasonable satisfaction from the evidence already collected regarding two aspects namely first is the other persons has committed an offence, second is that other persons could as well as be tried along with the other arrayed accused. Reliance was placed on the judgment of Hon'ble the Supreme Court in the case titled as Suman vs. State of Rajasthan & others reported as 2010(1) Criminal Court Cases 269 SC, wherein it was held that the court is to only be prima facie satisfied that such persons has committed an offence for which he/she can be tried with other accused. Heard. It is a well settled proposition of law that an order under Section 319 Cr.P.C should not be passed only because one of the witnesses wish to implicate another person. The Courts are required to apply stringent tests; one of the tests is that the Court should come to the reasonable conclusion on the basis of evidence before it that the same is likely to lead to conviction. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, while 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 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 Crl. Rev. No.929 of 2011 3 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 cognizance 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 those 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, Crl. Rev. No.929 of 2011 4 should not be 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 others 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 the 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 ti 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 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 Crl. Rev. No.929 of 2011 5 (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 or Section 319 Cr.P.C.” On the other hand, there is also no dispute with the proposition of law laid down by Hon'ble the Supreme Court in the case of Suman vs. State of Rajasthan and another reported as 2009(4) RCR (Criminal) 908 that the Sessions Court can take cognizance against the person qua whom there is a no committal order and can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused and a person can be proceeded against under Section 319 Cr.P.C if from the evidence collected/produced in the course of any inquiry, the Court is prima facie satisfied that such person has committed offence for which he can be tried with other accused. In the said case, of Suman (supra) as per the complainant “after one week of the marriage, her mother-in-law - Rukmani Devi and nanad - Suman (the appellant herein) told her that in the marriage, items like scooter, fridge, air-conditioner etc. have not been given and the marriage party was not served well; that mother-in-law - Rukmani Devi and Crl. Rev. No.929 of 2011 6 nanad – Suman forcibly took the complainant to a lady doctor and got implanted Copper-T so that she may not give birth to any child; that nanad - Suman started instigating the husband of the complainant either on phone or otherwise and thereupon, he not only used to assault, but also humiliate and torture the complainant; that on 7.4.2002 the husband gave beating with the belan and nanad - Suman snatched her hair and forcibly removed the brings. In her statement made before the police under Section 161 Cr.P.C., respondent No.2 reiterated all the allegations. The father and mother of respondent No.2 and 4 other persons, whose statements were recorded under Section 161 Cr.P.C., clearly spelt out the role played by the appellant in harassing respondent No.2 and instigating her husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand for dowry or harass respondent No.2 because she was living with her husband, Mahendra Pal at Bikaner. In her statement recorded under Section 164 Cr.P.C., respondent No.2 again made specific allegations against the appellant. While deciding the application filed under Section 319 Cr.P.C., the learned Judicial Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani Devi and sister-in-law, Suman had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated her husband to inflict physical torture, which were supported by the statements recorded by the police under Section 161 Cr.P.C.” It was, therefore, in the facts of that case, Hon'ble the Supreme Court held that the learned Judicial Magistrate has objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C. Coming back to the present case, both the ladies were empty handed and the role attributed to them is lalkara. They were found innocent during investigation. The only statement before the trial Court was the Crl. Rev. No.929 of 2011 7 statement of Harwinder Singh, who simply repeated the statement which was recorded by the police and on the basis of which, the FIR was registered. There was no other evidence against the two women sought to be summoned. Thus, while applying the test as laid down in the cases of Sarabjit Singh and another (supra) and Suman (supra) and from the FIR, as well as, from the statement of the complainant, there is no evidence or the allegation which may enable this Court to interfere in the order dated 09.02.2011 passed by the Sessions Judge, Mansa, vide which, the application under Section 319 of the Cr.P.C has been dismissed. As such, the present petition is dismissed being devoid of merit. (NIRMALJIT KAUR) 25.04.2011 JUDGE gurpreet