Crl.Rev.No.1733 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev.No.1733 of 2009 Date of Decision:- 03.08.2009 Harjeet Kaur ....Petitioner(s) vs. State of Punjab ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.H.S.Bhullar, Advocate, for the petitioner. Mr.Amandeep Singh Rai, AAG, Punjab. *** AUGUSTINE GEORGE MASIH, J. The present revision petition has been filed challenging the order dated 4.6.2009 passed by the Additional Sessions Judge, Gurdaspur, vide which application under Section 319 Cr.P.C. preferred by the State has been allowed and the petitioner has been summoned as an accused under Sections 302/34 IPC. Counsel for the petitioner submits that originally the FIR was registered under Section 324-B, 306, 34 IPC and thereafter on investigation, the petitioner was found innocent and was placed in column No.2 of the challan which was presented against the other four persons who were named in the F.I.R. and charges were framed against them under Section 302/34 IPC. Malkiat Singh son of Mangal Singh-complainant appeared as PW-1 Crl.Rev.No.1733 of 2009 -2- before the trial Court and made his statement and was cross-examined on 6.8.2008. On the basis of the said statement, the Additional Sessions Judge, Fast Track Court (FTC), Gurdaspur vide his order dated 14.11.2008 earlier summoned the petitioner to face charges under Section 302 IPC read with Section 34 IPC. The said order was challenged by the petitioner by way of Criminal Revision No.34 of 2009 and this Court vide order dated 1.4.2009 set aside the order dated 14.11.2008 passed by the Additional Sessions Judge, Fast Track Court, Gurdaspur, and issued directions to the trial Court to decide the application moved by the prosecution under Section 319 Cr.P.C. afresh in accordance with law. Thereafter, the Court has again proceeded to decide the application by the impugned order dated 4.6.2009. Counsel, on this factual gamut, submits that the present order which is impugned herein, has been passed in total violation of law and is not in compliance with the order dated 1.4.2009 passed by this Court. He contends that the statement of the complainant which was the basis of the F.I.R. is the same as he had stated before the Court while appearing as P.W.-1. He submits that it has been admitted by the complainant in his cross-examination that Harjit Kaur was a student of Matriculation at the time when incident occurred. He has referred to the statement of PW-1 Malkiat Singh, copy whereof has been appended as Annexure P-2, and has pointed out that the action of the complainant was totally unnatural. If the allegation as made by the complainant in his statement that a poisonous substance was administered to her daughter is taken to be correct, then he would have never left his daughter there and would have accompanied her to the hospital rather than going to inform his relatives in his native village. He has further admitted in his cross-examination that the complainant- Crl.Rev.No.1733 of 2009 -3- Malkiat Singh had a mobile phone with him at the time when the said incident occurred and he had visited the house of his daughter. He, on this basis, submits that only general allegations have been made that the petitioner who was then a class-X student, had given beatings to her. The other allegation is that she had, along with the others, administered poisonous substance forcibly in the mouth of the daughter of the complainant. He submits that these very statements and the evidence so collected by the prosecution was available at the time when the challan was presented and no fresh evidence has come on record which would justify the moving of the application by the prosecution under Section 319 Cr.P.C. and thereafter being allowed by the trial Court. On this basis, he submits that the present revision petition deserves to be allowed and the impugned order passed by the trial Court may be set aside. He has relied upon the judgment of the Hon'ble Supreme Court in the case of Micheal Machado and another vs. C.B.I. and another, 2000 (2) RCR (Criminal) 75 to support his contention with regard to the principle which has been laid down by the Hon'ble Supreme Court as also the judgment of the Hon'ble Supreme Court in the case of Sarabjit Singh and another vs. State of Punjab and another, 2009 (3) RCR (Crl.) 389. On the other hand, counsel for the State has submitted that the petitioner has been specifically named in the F.I.R. and has also been named by the complainant-Malkiat Singh while appearing as PW-1 before the trial Court. He submits that the allegations of beating and having forcibly administered poisonous substance in the mouth of the daughter of the complainant has come in the statement of the complainant. He, on this basis, submits that a prima facie case has been made out against the Crl.Rev.No.1733 of 2009 -4- petitioner where she can be summoned to face trial and if ultimately the petitioner is found innocent, the Court would acquit her. I have heard counsel for the parties and have gone through the records of the case. The factual aspect is not in dispute. The name of the petitioner is mentioned in the FIR and the allegations against her of beating and administering poisonous substance are of general nature since no specific role has been attributed to the petitioner. It cannot be lost sight of that the petitioner was a matriculation student at the time when the incident is stated to have taken place. Further, in the cross-examination, the complainant has admitted the factum of the petitioner being a matriculation student. The distance between the village of the petitioner and that of the complainant being of 30 Kms., it would be a natural reaction when a father who is present in the house of in-laws of her daughter, is informed by her daughter that she has been administered a poisonous substance, would not leave the daughter to be taken to the hospital by the in-laws and return to his village after seeing his daughter, to inform his relatives, especially when he has specifically admitted in his cross-examination that he was in possession of his mobile phone which he could have easily used to inform his relatives. The evidence which has been relied upon by the Court for summoning the petitioner as an accused does not fulfill the test which has been laid down by the Hon'ble Supreme Court in the case of Michael Machado's case (supra) wherein the Hon'ble Supreme Court has held that although the power under Section 319 Cr.P.C. is discretionary power to summon a person as an additional accused to stand trial along with other accused but merely because there is some doubt about the involvement of the alleged accused in the offence would not be sufficient to exercise powers under Crl.Rev.No.1733 of 2009 -5- Section 319 of the Code of Criminal Procedure. The requirement of law is that there is a reasonable prospect of convicting the person who is summoned as an additional accused of the offence allegedly committed by him. It is not in dispute that except for the statement of PW-1 Malkiat Singh complainant, there is no other evidence on record which the Court has taken into consideration while exercising its powers under Section 319 Cr.P.C. It can also not be lost sight of that the name of the petitioner was mentioned in the FIR but during investigation, the Investigating Agency had come to a conclusion that the petitioner was innocent and, therefore, was placed in column No.2 of the challan presented by the prosecution. What has come in evidence before the Court is that the complainant has merely repeated the name of the accused and has reiterated his contention as it was in the F.I.R. but that would not be sufficient for the Court to exercise its powers under Section 319 of the Code of Criminal Procedure. The Hon'ble Supreme Court in Sarabjit Singh's case (supra) has also in similar circumstances held that the power to summon an accused can be exercised only on the basis of fresh evidence brought before the Court and not on the basis of the material which has been collected during investigation. In the present case, no new material or evidence has been brought on record which would justify the exercise of powers by the trial Court under Section 319 of the Code of Criminal Procedure. It has further been held by the Hon'ble Supreme Court that the exercise of powers under Section 319 of the Code of Criminal Procedure should not be exercised in a routine manner but used very sparingly and that to only under compelling reasons except for taking cognizance against the other persons against whom action has not been taken. This being an extraordinary power, has to Crl.Rev.No.1733 of 2009 -6- be exercised by the Courts with great care and caution and should be exercised only when the Court finds that the evidence on record is such which would only lead to conviction of a person sought to be summoned. In this view of the matter, the impugned order dated 4.6.2009 cannot be sustained. In view of the above, the present petition is allowed and the order dated 4.6.2009 passed by the Additional Sessions Judge, Gurdaspur, summoning the petitioner Harjit Kaur as an accused under Section 302/34 IPC while allowing the application of the prosecution under Section 319 Cr.P.C. is hereby set aside. August 03, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE