300 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cr Revr No380 of 2008 Mohcl Sualeh Khan 80rs Petitioners Versus State of Haryana 4400Respondent j 0 Cr Revnl 2588 of 2008 0 0 Mohcl Mustafa 80rs eeeeePetitioners I C9 Versus I State of Haryana Z DATE OF DECISION 412011 2 BEFORE HONBLE MRS JUSTICE DAYA CHAUDHARY I L0 Z Presen Mi R Cheema SeniorAdvocate with Mr KS Nalwa Advocate 0 for the petitioners 7 Mr R Rai Senior Advocate Z with MiO Brar Advocate for the compiainant Mr Svlor Sr DAG Haryana 3r5r3rk DAYA CHAUDHARY J This order of mine shall disposeof two Cr Rev Petitions bearing Nos380 of 2008 and 2588 of 2008 Cil Revr No380 of 2008 has been filed by Mohcl Sualeh Khan AbduI Haq SaO4Jrtehman Mohd 14aroon Jan Mohd Abdul Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 301 CIl Revr No380 of 2008 21 GaffarAzad Mohcl and JagmohanJain and Crl Revr 2588 of 2008 filed by Mohcl Mustafa NayyarAiam Satish Chand Abdul 1 has been SaIam and Har Chand against order dated 161 02008 passed by AdditionalSessionsJudge Gurgaonwherebytheyhave been summoned underSection 319 CrC to face trial in case FiR No 42 dated 92005 under Section 148 1493023071 88323 IPC and Section 255459of Arms Act at Police Station FerozepurJhirka District Gurgaon In the aforesaid FiR 22 accused are alreadyfacingtrial and 13 more C who are petitionersin these two revision petitionshave been 0 summonedas an additional accused vide impugnedorder dated 0 I 16102008which is the subjectmatter of challengein these petitions C5 Noticeof motion was issued on 19112008 and 5122008 in I both the cases Z Mr S Cheema Iearned senior counsel for the petitioners C have the impugnedsummoningorder on the groundthat the I Additional Sessions JudgeGurgaonhas not taken into consideration the r relevantdocumentsand other evidence availableon record There is over Z material evidence on the record to show that the petitioners had f no role in the allegedoffence and theyhave falselybeen implicatedin this 7 Z case A detailed investigation was conducted by various oHicers wherein were found innocent and were keptin column No 2 in the repon underSection 173 CrC Learned senior counsel further contends that the disputearose becauseof the Panchayatelections which wereheldon 92005 In the said election Complainantohd Farooq Mohd Suaieh Khanand 11 other candidates were the contestingcandidatesfor the oHice of Sarpanch and the allegedoccurrence took piaceoutside the School wherein the petitioners were not involved Mr Cheema furtherarguedthat theIearnedAdditionaI Sessions Judgehas failedto appreciate the inquity and conducted by various officers includingthree DSPs Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 302 1 Crllevn 2380 of 2008 i 31 4r wherebythe petitioners were foundinnocent Farooq when examined as PW made and no reasonable ground wasgivenfor that improvementLearned counsel funher submits that the statementof complainant seems to be unbelievable as he was attackedby 36 persons and still remained unhun and moreover he was presentin the School whereas occurrence took place Ill CooperativeSocietyBank Thereis no substantialchangeor additionin the statement of PW1 and the statementof complainant is contraryto the medical evidence 1 C 1 aswell as documentscollected duringinvestigationNo weapon of oHence 0 was recoveredfrom any of the accused persons and the petitioners were 0 I neverarrested duringinvestigationEven from bare perusalof FSL repon C5 annexed as Annexure P 1 it is clear that emptiesrecovered from the placeof occurrence were those of gun shot Statement of any independent Z witness election staff policeand other omcers who were on duty were recordedunder Section 161 CrPC The statementof PWl is mere I of his statement made before the policeand the same is to the documentaryevidence and statements of other witnesses Z and the summoningorder has been passed without taking into 00 considerationthe improvement made bythe compiainant a7 Z Learnedcounsel contends that as per allegationsin the FlR tl accusedoetitioner Mohd Mustafa was presentat booth N025 whereas as perstatement of Murari Lal PresidingOmcer of the said booth he was not present at the booth nor any altercationtook placeinside the school Similarlydeceased Arshad Hussain received one Ore arm injury on his Ieft eye as per postmortemrepoitand complainant while appearing as PWm1in his crossexamination has stated that the same has been attributed to one Yusaf In the FlR the complainant has not Statedthat he waspresentin the 0Hice but allegedthat Mohd Mustafa fireda shot from the distance of 1042 feet As per postmortemreponthe Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 303 Cr Revnl 2380 of2008 41 1 C injury was not possiblefrom a distance of 10e12 feet and is onlypossible fromrange of not more than 2 feet The evidence of complainantN IS contradictory and contraryto the medical evidence site plan as well as documents which were before the Iearned Additional Sessions Judge Gurgaonbut the same was not appreciated Learnedsenior counsel also contends that the summoningof Alam on the basis of same role as allegedin the FiR is totallycontraryto the investigation conducted by various officers 1 includingthree DSPs Even as per the FSL reportdated 62006 the 0 pelletsin both the injuriesof deceased Rajakare of the same size which 0 I shows that oniy one e arm was used which hit the bodyof deceasec C5 Rajakand that injuryhas been attributedto accusedizamuddin by the I who has been declared as proclaimedoHender During Z accusedoetitioner NayyarAIam was found presentwith his 2 r fatherand other persons at booth No30 beinghis election agent In the I conducted by BhoopSinghInspectorand Tawar Singh DSP 1 it has clearlybeen reportedthat accusedoetitioner NayyarAlam was not Z presentat the spot Even in further investigation conducted by Puran m Chand Pawar DSP Nuh and InspectorRandhir Singh NayyarAIam was W3 aiso found innocent Z It is also the contention of Iearned senior counsei that Om accusedoetitionereSatish Chand was not even voter of the villageand is residing at FerozepurJhirka for the Iast more than 20 years and has falsely been implicatedbecause of some civil Iitigationpendingbetween him and and due to enmitywith Sarpanchof Gram PanchayatBiwan PetitionereSatishChand was also found innocent by Tawar Singh DSP duringinvestigation Mr Cheema Iearned senior counsel also contends that AdditionslSessions Judge Gurgaonfailed to appreciatethat accuse Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 1 1 a 304 Io Cr Revt N 2380 of 2008 51 Salam is a resident of Gurgaonand was present on election duty at Gurgaonon 82005 and 92005 with the Returning OfficercumeSub Divisionai Omcer Gurgaon In the inquiryalso accusedv Salam was found presentat Gurgaonon election dutywith Returning Officer Mr Cheema also submits that accusedoetitionerohd SualehKhan was one of the contestingcandidate for the election of wherein the complainant was also a candidate He is 70 years m of age and has falselybeen implicatedin this case The allegations 0 Ievelledagainsthim is regardingraisingof a Ialkara and the version of 0 I qua him is the same as has been givenby him in the 9 FlR Duringinvestigationby vanous oHicers he was not found innocent I and was not found at the placeof occurrence rather was found presentin Z booth N30 alongwith his son NayyarAlat r Mr Cheema Iearned senior counsel next contended that I Haqhas also falselybeen implicatedin this case being a Government setvant On the date and time of allegedoccurrence Z he was his duties with ReturningOfOcerISDM Gurgaonand r wasnot presentat the spot Itis furthersubmittedthat the documentswith W2 Z regardto his presence on dutywith SDM Gurgaonwere also putto Mohd Qe Farooq Itl his crossexamination On the applicationOled by the complainantan inquirywas marked by Deputy Commissioner to of Police Mewat who alongwith Tawar Singh the then DSP FerozepurJhirka had reportedto the DeputyCommissioner that accusedoetitioner4bdul Haq was on election duty on 8005 and 92005 with the ReturningOftlcer at Gurgaonand was not involvedin the presentoccurrence A certificatewas also issued bythe ReturningOmcer to this effect Learnedsenior counsel also arguedthat accuseoetitionere Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 305 Il Ctl Revn 2380 of 2008 61 SafUrRehman has also falselybeen implicated in this Case whereas he IS residentof FerozepurJhirka and is a Government employeein Forest DepartmentHaryanaand IS postedas Forest Guard He has been attributeda jellyblow on the head of injuredMunshi Khan whereas on the dateof occurrence he was on election dutyat booth No103 at villageNai and a certificate was also issued to this eHect Even complainanthas also admitted in crossvexaminationthat Saflehman was residingat Ferozepur Jhirka much priorto the occurrence In this case also inquiry 1 wasconducted wherein it has been found that he was presenton Election 0 dutyas a pollingofficer in both No 103 at villageNai He has also been 0 I falseiyimplicatedbecause he belongsto familyof Mohd Suaieh Khan C5 whowas a candidate for the postof Sarpanchalongwith complainant I Learned counsel also relied upon Joginder Singh and Z anotherVs State of Punjaband another 197911 SCC 345 Municipal L of Delhi Vs Ram Kishan RohtagiS Ors 38311 SCC l I Michael Machado and another Vs CBl and another 200013 SCC 262 C Kishnappa Vs State of Karnataka 200417 SCC 792 Lok Ram Vs Z Nihal Singh S another 2006110 SCC 192 Mohd Shafi Vs Mohd OO Rafiq S Anr JT 2007 51SC 562 RajendraSinghVs State of UP and Z another 200717 SCC 378 HardeepSingh Vs State of Punjab80rs Qm 2008 41RCR Criminall947 and Lal Suraj SurajSingh and another Vs State of Jharkhand MANU1SC1847712088in suppon of his contention Mr R Rai Iearned senior counsel for the complainant submitsthat the summoningorder has rightlybeen passedagainstthe on the basis of evidence collected againstthem Complainant Mohd Farooq being an eye witness of the occurrence cannot be disbelievedLearned senior counsel submits that despiteevidence being collected againstthe petitionersduringinvestigationthey were not challaned by the investigatingagency without any valid and cogent Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 306 1 C Revn No380 of 2008 71 1 reasons inspite of attributionof speciflcover act in the occurrence There were reasonablegroundsto proceedagainstthe petitionersas the role attributedto them does not appear mild in nature as comparedto others who are facingtrial The pleaof aiibi that some of the accusedpetitioners werenot presentat the timeof occurrence cannot be believed at this stage as it is a matter of evidence which can be provedat the time of trial Moreover power under Section 319 CrC is an extraordinary power and thatcan be exercised onlyif thecompelling reasons exist and that power is m r exercised sparinglyor in circumstances It has been held by 0 Honblethe ApexCourt in variousjudgments that while invokingjurisdiction 0 I in terms of Section 319 Cr the Coun must satisfyitself that there exist C5 every that the accused so summoned in all Iikelihoodwould be I convicted There is sufficient materialin the evidence of PVI and prima Z facie involvement of all accusecoetitioners in the allegedoccurrence IS provedLearned counsel submits that Honble the ApexCourt in the case I of RajendraSingh Vs State of UP and another 2007 31 RCR Criminall1022 has observed that Court need not to be satisOed that a Z personnamed as an additional accused has committed an oHence but it m needs to appear that he has committed an offence It was held that Z Section 319 CrC gives power to the Court to ensure that all those 0a involved in the commission of an 0Hence are triedtogetherand noneieft out There is no reason to describethe power as an extraordinary power or to con6ne the exercise of it onlyif the compellingreasons exist In the presentcase the compellingreasonsare there on which basis the order has been passed Learned counsel also relied upon SumanVs State of Rajasthanand another 2009 41 RCR Criminall 908Ram PaI SinghS Ors Vs State of U and another 2009 21RCR 131 Y Saraba Reddy Vs Puthur Rami Reddyand another 200721RCR Criminall1014 Lok Ram Vs Nihai Singh 2006 21RCR Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 307 Cr Revr No380 of 2008 81 1 Criminall707 SarabjitSingh and another Vs State of Punjab and another AiR 2009 SC 2792 and Ram Singh S Others Vs Ram Niwas and another 201011 SCC Crl 11278 have heard the argumentsadvanced by Iearned counsel for theparliesas well as summoning orders and other documentsavailableon record In this case duringexaminationof complainantMohd Farooq 1 PW who was an eye witness of the occurrence an applicationunder 0 Section 319 CrP was filed by the prosecution on the basis of specific 0 0 overt act regardingaliegationsin causingdeath of Arshad Hussain and Rajakand also in causinginjuriesto the injured The applicationwas C5 allowed and petitionershave been summonedto face trial As per case of I theprosecutionelection for the omce of Sarpanchand Member Panchayat Z was held in State of Haryanain the month of April 2005 Complainant lr Moh Farooqand other 11 persons were contestingfor the Panchyat I elections of villageBiwan Police Station FerozepurJhirkale aileged firingtook placeoutside the School On the basis of statement of the Z FIR No 42 dated 9A2005 under Sections 148149 CO 302307188323 IPC and Section 25154159of Arms Act was registered 7 Z As per case of the complainantnames of 36 persons were mentionedas accused for causingdeath of Arshad Hussain and Rajakand causing injuriesto 7 persons As per case of the complainantaccusedletitioner Mohd Sualeh Khan told his persons thattheyare Ioosingelections and Iesson should be taughtto the compiainantfor becomingSarpanch Sualeh Khan and Mohd Mustafa iostigatedtheir pattyworkers to attack the complainantparty They were armed with made pistols jellies Iathies and pharsasand attacked the complainantparty Accused Mohd Mustafa Abdul Haq Nayyar Nizamuddinand Khursid were shown to be armed with counttymade Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 308 1 Crl Revt No380 of 2008 91 qv pistols and Satish Chander armed with pharsaAbduI Salam Habib yasen Jabbar Khan Jan Mohcl SatlJreRehman Harchand Hussain Mehmood Mohd Idrish Gaffar Fateh Mohd Sahud Azad Jagmohan Sakur Haroon isfaqueMehmood Abduli Aleem Jamshed AyubSamsu Wahid Kalu AbduI Rashid Karrar Aleem and Mubin were allegedto be armed withIathiesjelliesand pharassin the FIR and theyattacked and caused injuriesto the compiainantpartywith common intentior As per allegations 1 in theFlR two persons died and seven gotinjurieswhereas medico Iegal examinationof onlytwo injurednamelyFaiz Mohd and Munshi Khan was 0 conductedon 92005 wherein four injurieshave been sliown to each Ca3 I As per postmortem reportsix injuries on the person of Arshad Hussain and C four injurieson the person of Rajak were reported One injured I Shahabudingot conducted his MLR on 122005 and injuredJumal Ali Z Mohd Javed and Rustom did not gettheir MLRs conducted Jubeda is not m2 named in the FIR Initiallyinvestigation was conducted by Inspector I BhoopSinghand four persons were not found to be involved in the said occurrence and Mohd Mustafa was not found presentat the placeof Z occurrence and others who were not attributedany role in the aileged ClO occurrence were Mohd Suaieh Khan NayyarAlam and Satish Chand W2 Z Subsequentlythe investigation was handed overto Tawar Singh DSP Jhirka who found Abdul Haq Abdul Salam Satish Chand Har Chand JagmohanJain SafiJreRehman Abdul GaHar and Azad Mohd as innocentFurther the investigation was conducted by Puran Chand Pawar DSP Nuh who found other than the abovesaid eightpersons two more personsnamelyMohd Mustafa and NayyarAIam innocent on the ground thattheywere not havingany weapon for causingany injury After that the investigation was conductedby Ram Kishan DSP FerozepurJhirka who found Mohd Sualeh Khan and Jan Mohd Innocent Again the investigation was conductedby inspectorRandhir Singh CIA Staff who Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 309 Ctl Revr No380 of 2008 101 1 11 q found Mohd Haroon as innocent U In this case initiallyinvestigation was conducted by Inspector BhoopSingh wherein four persons were found not to be involved in the alleged occurrence and Mohd Mustafa was not found presentat the place of occurrence and Mohd Sualeh Khan NayyarAIam and Satish Chand were not attributedany role in the allegedoccurrence Subsequentlythe investigation was conductedby DSP Tawar Singh FerozepurJhirka who foundAbdul Haq Abdul Salam Satish Chand Har Chand JagmohanJain m Q SafiJreRehman AbduI GaHar and Azad Mohd as innocent Thirdlythe 0 investigation was conductedby Puran Chand Pawar DSP Nuh who found CA the abovesaid eight s persons innocent alongwithtwo more personS 0 namelyMohd Mustafa and NayyarAIam on the groundthat theydid not I cause any injuryand were not armed with any weapon Thereaner the Z investigation was conductedby Ram Kishan DSP FerozepurJhirka who C also found Mohcl SuaIeh Khan and Jan Mohcl Innocent LastlYthe I investigation was conductedby InspectorRandhir SinghClA StaH who foundMohd Harun as innocent It appears from the record that petitioner Z SatishChand was not even voter of the villageand is resident of Ferozepur CO Jhirkafor the Iast more than twentyyears and due to some civil Iitigation 7 which is pendingbetween him and the complainanthe has been falseiy Z in this case and was found innocent by DSP Tawar Singhin the Similarlypetitioner4Iui Salam is also a resident of Gurgaonand was presenton eiection dutyat Gurgaonon 82005 and 92005 with the ReturningOmcerwcumSubDivisional Omcer Gurgaon whichis also clear from the record Petitionervlohd Sualeh Khan was the candidate for the post of Sarpanchalong with complainantand the againsthim is that he raised iaikara and duringinvestigation he was not even found present at the placeof occurrence as he was present at booth No 30 beingthe candidate Similarlypetitiner4lbdul Haqwas Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 1 810 Cr Revnl 2380 of 2008 111 also his election duties with returningomcerISub Divisional Gurgaonand was not presentat the spot ln the inquiry conductedagainsthim he was found innocent by DSP FerozepurJhirka who the DeputyCommissioner that Haqwas on electiondutyon 82005 and 92005 and was with the ReturningOmcer at Gurgaon4certificatewas also issued by the ReturningOmcer in this regardso the presence of Haqat the placeof occurrence m cannot be possiblein any manner Similarly r wasworking as Forest Guard and was on election dutyat booth No 103 at 0 VillageNai In his case also a certificatewas issued to that eHect and even 0 the compiainanthas also admitted in crossexamination that Safi C 1 Rehman was at FerozepurJhirka I Although the pleaof alibi is also a matter of evidence but in Z case of summoningand in presence of documentaryevidence in this 2 0 regardas the record reveals that petitionersatishChand Abdul Salam I Mohcl SuaIeh Khan Abdul Haq and Safi4ehman were petforming their duties and their presence at the place of occurrence cannot be Z presumed m The powers under Section 319 CrC is an extra ordinary w2 Z powerand the same is to be exercised onlyif the compelling reasons exist andoniyin exceptional cases as has been held by Honble the ApexCoun invanous In terms of Section 319 CrC the Court must satisfyitself that there is possibilityfor lviction on the basis of that evidenceand sufficient material is there for their conviction Honble the ApexCourt in Michael Machados case Isupralhas observed as under The basic for invokingthe above section is that it shouid appear to the Court from the evidence collected duringtrial orin theinquirythat some other person who is not arraignedas an accusedin that case has committed an Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 311 Cl CtlRevn 2380of2008 121 V oHence for which that person could be tried togetherwith the ll accused alreadyarraigned it is not enoughthat the Court entertained some doubt from the evidence about the involvementof another person in the oHence In other words the Court must have reasonable satisfactionfrom the evidence aiready collected regardingtwo aspects First is that the other personhas committed an offence Second is that for such offencethat other person could as well as tried alongwith the j l alreadyarraignedaccused 0 In MunicipalCorporationof DeIhi V Ram Kishan Rohtagi C I 8 Ors 1983 11RCR 1Crl73 1 1983 111SCC 1 this Court has C9 struck a note of caution whiie consideringwhetherprosecution I can produce evidence to satisfythe Court that other accused Z againstwhom proceedingshave been quashedOr those who e2 r have not been arrayedas accused have also committed an I offencein order to enable the Court to take cognizanceagainst them and try them alongwith the other accused This was Z howIearnedjudgesthen cautionedl CO But we would hasten to add that this is really an vmo Z power which is conferred on the Court and should be used very sparingiyand only if compelling reasons exist for takingcognizanceagainstthe other personagainstwhom action has not been taken 31 n the present case investigation has been conducted four times and namely Satish Chand Abdul SaIam Mohd Suaieh Khan Abdul Haq and SafiwUreRehmanwere not found involved in the allegedoccurrence Inview of the above factsas well as settled of Iaw order dated 16102008 passedbyAdditional Sessions Judge Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 812 Cr Revr No380 of 2008 131 Gurgaon qua Satish Chand Abdul Salam Mohd Sualeh Khan Abdul Haq D and Safi4JreRehman is set aside and qua to others the petitionIS dismissed 4201 1 IDAYA PooJa JUDGE 1 C NoteNhether this case is to be referredto the Repoi eslNo 0 I3ll 0 I 0V Z 1 1 111 I Z m m Z 0a Uma 2013.03.19 10: 41 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document