Crl. Revision No. 3271 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No. 3271 of 2009 (O&M) Date of decision:- 14.09.2011 Pavitar Narain Singh ....Petitioner Vs. State of Haryana and another ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL 1. Whether Reporters of local papers 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? Present:- Ms. Monisha Lamba, Advocate, for the petitioner. Mr. Amit Rana, DAG, Haryana. Mr. Sarfraj Hussain, Advocate, with Mr.B.S. Tewatia, Advocate, for respondent No.2. ***** A.N. JINDAL, J (ORAL) Petitioner-Pavitar Narain Singh (hereinafter referred to as 'the petitioner') has assailed the order dated 10.07.2009 passed by the Addl. Sessions Judge, Faridabad, summoning him as additional accused along with Deepu alias Abhey Chauhan to face trial along with Banti @ Bijender under Sections 364-A, 325, 294, 376, 511 and 506 IPC. Accused Deepu @ Abhey Chauhan has not assailed the order. Obviously, he must have joined the proceedings before the trial Court. In nutshell, the facts are that Mamta alias Meeta was married to Ygender Goyal, Advocate, a resident of Ballabgarh, on Crl. Revision No. 3271 of 2009 (O&M) 2 05.05.2007. Though, she was residing with her husband happily, but some people were threatening her on telephone to spoil her married life. On 11.07.2007, during midnight, Yogender Goyal, Advocate, informed the complainant-Leela Dhar Mittal (PW-1) that Mamta was found missing from the marriage, which they had gone to attend. But on the same very day, Mamta reached her parental house. On 12.07.2007, she came back to her in-laws house, but she had not regained from the trauma. Ultimately, on 12.07.2007, she when fully regained consciousness, told the complainant that Banti alias Bijender Yadav, Deepu alias Abhay Chauhan and one another person, whose name she does not know, had abducted her from the place of marriage by inhaling something. They had also been threatening her that they had taken some nude photographs and they would hand over the same to her husband. They had also threatened to kill her, her husband and father unless she pays Rs.10 Lacs to them. Again on 15.07.2007 at 10.00 P.M., accused-Banti called upon the son in law of the complainant on mobile phone to send a sum of Rs.10 Lacs to them. He had also threatened him either to send the money or that he and his entire family would be killed and Mamta shall be kidnapped and her nude photographs shall be released. Thereafter, a case was got registered by the complainant. During investigation, Deepu alias Abhay Chauhan was found innocent and his name was kept in column No.2 of the report under Section 173 Cr.P.C., whereas Banti was charge sheeted for the offences under Section 364-A, 387/511, 376/511 and 506 IPC. After examining two witnesses, the prosecution moved an application under Section 319 Cr.P.C. and the trial Crl. Revision No. 3271 of 2009 (O&M) 3 Court, summoned both Deepu alias Abhay Chauhan and Pavitar Narain Singh-petitioner to face trial along with accused Banti alias Bijender. Though Deepu alias Abhay Chauhan has not contested the order of summoning, yet the petitioner has assailed the same. The material evidence in the case is that Mamta, from the very beginning, had stated that there were three accused to commit the crime. Even on 17.07.2007 during investigation, petitioner had appeared before the Deputy Superintendent of Police, where she had recognized him as the third accused. Both the witnesses have stated that it was the petitioner, who had also accompanied the other accused in the commission of the crime. At the very outset, learned counsel for the petitioner has urged that powers under section 319 Cr.P.C. conferred upon a Criminal Court to add a person who was not earlier arraigned as an accused, and was not facing trial before it, could be summoned when there is not only hope, but sufficient evidence to record conviction against him. The Court has to be extra cautious while exercising the discretion vested in it and apply the test that prima facie there is sufficient evidence to warrant the conviction of a person to be summoned to face trial along with other co-accused. But, in the present case, the complainant or the prosecutrix, in the FIR or at the very initial stage, never named him as an accused, therefore, the statement made by the prosecutrix at a later stage would amount to an improvement, obviously with a zeal to bring him into the net and on the basis of such type of evidence, no order of summoning could be passed against him. Heard, the scope of the provisions of Section 319 Cr.P.C. and conferment of its powers upon the Criminal Court, Crl. Revision No. 3271 of 2009 (O&M) 4 have been discussed by the Hon'ble Apex Court a number of times. Section 319 Cr.P.C. refers to the conditions for summoning the accused:- (i) If during inquiry or trial, it appears from the evidence that the accused has committed an offence. (ii) Such person was not the accused before the Court earlier. The action or initiation of action i.e. Issuing of the process under the Code of Criminal Procedure is based on the following terms:- 1. “Prima facie case;” 2. “The reasonable grounds to believe;” 3. “If the Court is satisfied;” 4. “If it appears from the evidence” 5. “Reasonable doubt.” 6. “To the satisfaction of the Court.” So far as these aforesaid six terms are distinct and different in their meaning and context as mentioned at their places respectively, whereas there is a little difference in the degree qua the matter of proof. The word 'prima facie' does not look for any ultimate reason, but it refers to the belief or suspicion which arises in the mind of the Court or the police officer as the case may be. 'reasonable grounds to believe' refers to the power of Court or the police officer during inquiry, investigation or trial and the accused could be proceeded against if there is prima facie material and he records his satisfaction to proceed against the accused. Similarly, the words 'appear from the evidence' 'it Crl. Revision No. 3271 of 2009 (O&M) 5 appears or is made to appear' as incorporated in the Code or under Section 319 of the Code do refer to the evidence from which the Court could prima facie record an opinion. The Court should not go by any suspicion or doubt created by the prosecution or the material on record but it is the satisfaction of the Court, from the material on record and the evidence as led by the prosecution. If the Court is satisfied that on the basis of the material and the evidence, there were sufficient grounds for his conviction, then the Court can exercise the powers under Section 319 Cr.P.C. 'Reasonable doubt' is incorporated to mean that the accused is presumed to be innocent till he is found guilty on the evidence on record beyond reasonable doubt or in other words if he could not be extended benefit of doubt. The Hon'ble Apex Court, while interpreting the provision of Section 319 Cr.P.C. in case Joginder Singh and another Vs. State of Punjab and another, 1979 AIR (SC) 339, observed as under:- “9. As regards the contention that the phrase “any person not being the accused” occurring in Section 319 excludes from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in column No.2 of the charge-sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319 (1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression.” Crl. Revision No. 3271 of 2009 (O&M) 6 While further elaborating the scope of Section 319 Cr.P.C., the Hon'ble Apex Court in case Michael Machado & another Vs. Central Bureau of Investigation & another, 2000 (2) RCR (Criminal) 75, observed that mere suspicion is not sufficient that he is also the accused along with the other accused, but the Court should have reasonable satisfaction from the evidence collected, that the complicity of the accused along with the other accused, cannot be ruled out. The Hon'ble Apex Court further observed as under:- “11. 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 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 as well as tried along with the already arraigned accused. 12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against Crl. Revision No. 3271 of 2009 (O&M) 7 other persons.” The Hon'ble Apex Court in case Lok Ram Vs. Nihal Singh, 2006 (2) RCR (Criminal) 707, while discussing the powers of the trial Court to summon the additional accused, took a view that the Court had full discretion to summon additional accused, but these extraordinary powers 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. Hon'ble Apex Court further observed as under:- “(i) Power under Section 319 Cr.P.C. can be exercised by the Court suo motu or on an application by someone including accused already before it. (ii) The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. (iii) 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. (iv) A person named in FIR, but not charge sheeted, can also be added to face trial only on the basis of evidence adduced before court and not basis of materials available in the charge sheet or in case diary. (v) Trial Court has jurisdiction to add a person as accused at any stage of proceedings. 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. This is by virtue of legal fiction created by Section 319 (4) (1) (b). (vi) There is no compelling duty on court to proceed against other persons merely on the ground that some evidence had come on record implicating the person sought to be added as an accused- Order is to be passed mechanically.” Again in case Kailash Vs. State of Rajasthan & another, 2008 (2) RCR (Criminal) 200, the Hon'ble Apex Court, Crl. Revision No. 3271 of 2009 (O&M) 8 while following the judgments delivered in cases Krishanappa Vs. State of Karnataka, 2004 (4) RCR (Criminal) 678 and Michael Machado (supra), observed as under:- “ A glance at these provisions would suggest that during the trial, it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are “it appears from the evidence”..... “any person”..... “has committed any offence.” It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the Court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence in appears that the concerned person has committed an offence. The words “it appears” are not to be read lightly. In that the Court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands.” Recently, in a judgment delivered in case Brindaban Das and others Vs. State of West Bengal, 2009 (1) RCR (Criminal) 672, the Hon'ble Apex Court while following the judgments delivered in cases Krishanappa and Michael Machado (supra), observed as under:- “18. The common thread in most matters where the use of discretion is in issue is that in the exercise of such Crl. Revision No. 3271 of 2009 (O&M) 9 discretion each case has to be considered on its own set of facts and circumstances. In matters relating to invocation of powers under Section 319, the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the F.I.R. has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.P.C. entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial Court has to exercise such discretion with great care and perspicacity. Although, a somewhat discordant note was struck in Rajender Singh's case (supra) the views expressed in the majority of decisions of this Court on the point subscribe to the view that the power under Section 319 Cr.P.C. is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice.” In a recent judgment delivered by Hon'ble the Supreme Court in case Sarojben Ashwinkumar Shah etc. Vs. State of Gujrat and others, 2011 (3) RCR (Criminal) 852, it was further added that the Court should not summon the additional accused in a routine manner; Court cannot add persons as accused on the basis of the material available in the charge sheet or case diary, but must be based on evidence before it. A mere doubt about the involvement of the other person having committed an offence on the basis of the evidence led in before the Court is not enough to summon him as accused. It was also observed that the Court while summoning the additional accused must keep in mind that in respect of newly added accused, the proceedings will be opened afresh in the terms of Section 319 (4) of the Cr.P.C. Crl. Revision No. 3271 of 2009 (O&M) 10 On examination of the aforesaid law points, this Court is of the considered opinion that an extraordinary jurisdiction has been conferred upon the trial Court to summon additional accused, who was not an accused before the trial Court and whose name had surfaced during the evidence. Though the Court has been conferred with the wide discretion in the matters of summoning additional accused, yet note of caution has been issued that normally Court, merely for the reason that his name has just figured; there are no chances of his conviction and the trial is at the fag end of its conclusion, as, if it is so done, Court would have to set the clock back and make the entire exercise of collecting the evidence again. However, when the trial is at its initial stage of recording the evidence of the complainant or the witnesses, after framing of charge. In that situation, the order of summoning could not be said to have prejudiced either the prosecution or the accused and also does not result into much delay in trial at the cost of imparting complete justice to the parties. At the same time, the Court, should avoid summoning of an accused, who was apparently not in any manner connected with the commission of the crime. In the present case, the prosecutrix, from the very beginning, has come with a story that two accused to whom she knew, were accompanied by another unknown person, who had come to the marriage palace and all of them had called her outside the palace and those persons forcibly dragged her into the vehicle and then she was made to inhale something making her unconscious. The prosecutrix has specifically stated in her statement in the Court that all three of them (by specifically Crl. Revision No. 3271 of 2009 (O&M) 11 naming them) had thrashed her by slaps and they had threatened her that they had taken her nude photographs while she was in an unconscious state and they shall expose those photographs to her husband, father and other family members. She while describing their specific role, stated that Deepu caught hold of her from behind and she was made to inhale something, whereas the other two accused had forcibly pushed her into the car. She has also explained that at that time, she did not know the name of the third person, but during enquiry before the Deputy Superintendent of Police, she had identified that person and his name was revealed as Pavitar Narain Singh-petitioner. Though the prosecutrix had been naming Deepu alias Abhay Chauhan from the very beginning and had also identified the petitioner during enquiry on 17.07.2007, but it is not known as to for what reason the police had dropped even Deepu and had not arraigned him (the petitioner) as an accused. In the given circumstances, it cannot be said that there is no sufficient evidence to connect the petitioner with the commission of the crime, much less for the purpose of summoning him as an additional accused to face trial along with the other accused. Resultantly, finding no merit in the petition, the same is hereby dismissed. However, none of the observations or expression of opinion made by me in the aforesaid paras would affect the merits of the case. (A.N.JINDAL) 14.09.2011 JUDGE ajp