IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 912 of 2007 Date of Decision:-15.1.2009 Narinder Kaur and another .... Petitioner(s) Versus State of Punjab ....Respondents CORAM: HON'BLE MR. JUSTICE M.M.S.BEDI. Present:- Mr.J.P.S.Chadha, Advocate, for the petitioner(s). Mr. R.S.Rawat, AAG, Punjab. Mr. Deepak Sharma, Advocate, for respondent No.2. M.M.S.BEDI. (J) (Oral) Legality and propriety of order dated 20.5.2006 has been questioned in this revision petition. By virtue of impugned order, application under Section 319 Cr.P.C has been allowed, but the petitioners Avtar Singh and Narinder Kaur have been su mmoned as additional accused. A similar order has been passed earlier summoning the petitioners on the basis of statement of PW-1 Sodagar Singh made in the Court on oath. Petitioners had preferred a revision petition before this Court. Vide order dated 6.4.2006, Annexure P-2, the said revision petition was allowed with following observation:- "The discretion given to the Court to summon a person as an accused is to be judiciously exercised on the basis of evidence on record as there is tendency to rope in every member of the faimly which has been reflected in large number of cases. In the instant case, the impugned order has been passed merely ont he basis of what has been stated by PW-1 Sodagar Singh. The Court is required to assess the evidence in conjunction with the Crl. Rev. No. 912 of 2007 -2- previous statement and other material on the record which is missing in this case. The impugned order, thus, has been passed without application of mind and in a mechanical way and is liable to be set aside. In this view of this, order dated 2.6.2005 stands set aside and the matter is remitted back to the Court concerned to pass a fresh order on the application under Section 319 Cr.P.C." Learned counsel for the petitioner has contended that the trial Court has misconstrued the directions passed by this Court to reconsider the matter on the basis of the evidence on record as the summoning order dated 20.5.2006 has again been passed solely on the basis of statement of PW-1 Sodagar Singh made in the Court on oath. Learned counsel for the respondent has contended that impugned order is a valid order as the trial Court has considered the statement of Sodagar Singh PW-1 made in the Court and had also taken into consideration "the statement under Section 161 Cr.P.C of Harnek Singh and Tarlochan Singh". The short question which requires to be determined in this case is whether the statements recorded by the police during investigation under Section 161 Cr.P.C can be taken into consideration for summoning an additional accused considering the said statements to be evidence. The order passed by Sessions Judge Fatehgarh Sahib seems to be patently illegal as the same has been passed misconstruing the directions of this Court dated 6.4.2006 wherein it was held that the discretion given to the Court to summon a person on the basis of the evidence on record. As per the Evidence Act oral evidence means all Crl. Rev. No. 912 of 2007 -3- statements which the Court permits or requires to be made before it by witnesses. Section 162 of Code of Criminal Procedure 1973 makes the statement under Section 161 Cr.P.C recorded by the police as inadmissible in evidence except for the purposes mentioned in the priviso. In this concern a reference can be made to AIR 1999 Supreme Court 1969 Ram Parshad Vs. State of Maharashtra laying down that statement of witnesses before investigating officer cannot be used as evidence. In view of above circumstances, I am of the opinion that the impugned order summoning the petitioners taking into consideration the statements under Section 161 Cr.P.C recorded by the police of Harnek Singh and Tarlochan Singh along with statement of PW-1 Sodagar Singh is not sustainable in the eyes of law. The impugned order is set aside as the parameters laid down by Hon'ble Supreme Court in Micheal Machado and Anr. Vs. Central Bureau of Investigation & Anr, 2000(2) RCR 75 do not seem to have been properly appreciated. Petition is allowed. Order dated 20.5.2006 is set aside. Interim order vacated. This order will not prejudice the right of the complainant to file an application under Section 319 Cr.P.C after the examination of Harnek Singh and Tarlochan Singh. January 15, 2009 (M.M.S.Bedi) tripti Judge