Criminal Misc. No. M-29775 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-29775 of 2009 (O&M) Date of Decision:18.11.2009 Karam Kaur and others .....Petitioners Vs. The State of Punjab and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Deepak Thapar, Advocate for the petitioners. Mr. B.S. Sidhu, Advocate for respondent No.2. Mr. T.S. Salana, Deputy Advocate General, Punjab. **** HARBANS LAL, J. This petition has been moved by Karam Kaur (Parkash Kaur), Ajaib Singh and Buli under Section 482 of the Code of Criminal Procedure for quashing the impugned order dated 2.9.2009 Annexure P.11 passed on the application under Section 319 of Cr.P.C moved by State of Punjab – respondent No.1 and respondent No.2 through the Public Prosecutor for summoning seven persons as additional accused including petitioners No.1 to 3 and all the subsequent proceedings in the above noted case. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioners submitted that a glance through the impugned order would reveal that it has been passed in a Criminal Misc. No. M-29775 of 2009 (O&M) -2- mechanical manner without application of judicial mind. As held by Hon'ble the Supreme Court, before summoning anyone as an accused under Section 319 of Cr.P.C, it is very much necessary for the Court to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if goes unrebutted, would lead to conviction of the person sought to be added as accused in the case. In the present one, such satisfaction is totally missing. The trial Court has even failed to refer to the evidence which has come on record on the basis of which it may arrive at any finding against the petitioners. To buttress this stance, he has relied upon Michael Machado & Another v. Central Bureau of Investigation & Another, 2000(2) Recent Criminal Reports (Criminal) 75, Palanisamy Gounder and another v. State Represented by Inspector of Police, 2006(2) Recent Criminal Reports (Criminal) 235, Lok Ram v. Nihal Singh, 2006(2) Recent Criminal Reports (Criminal) 707 and Ram Singh & Others v. Ram Niwas & Another, 2009(3) Recent Criminal Reports (Criminal) 501. To tide over these submissions, the learned counsel appearing for the respondents maintained that the evidence on the basis of which, the petitioners have been summoned to face trial along with their co-accused clearly indicates their involvement in the commission of the crime and that being so, the impugned order in no manner can be faulted with. I have well considered the rival contentions. In re: Michael Machado & Another (supra), it has been observed by the Apex Court that Court has discretionary power to summon a person as an additional accused to stand trial. It is not enough that Court entertained some doubt about his Criminal Misc. No. M-29775 of 2009 (O&M) -3- involvement in the offence. The Court must have reasonable satisfaction from the evidence already collected. There is no compelling duty on Court to proceed against other persons. Suspicion is not sufficient that there is reasonable prospect of convicting the additional accused of the offence. In re: Palanisamy Gounder and another (supra), it has been held that power under Section 319 of Cr.P.C cannot be exercised so as to conduct a fishing inquiry. Person be added as an accused only when there is a reasonable prospect of the case against such accused ending in their conviction. Unless the Court is hopeful that there is reasonable prospect of the case against the newly added accused ending in their conviction in the offence concerned, the Court shall refrain from adding them as accused. In case Lok Ram (supra), Hon'ble the Supreme Court has summed up the law on Section 319 of Cr.P.C 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 regards 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 basis of evidence adduced Criminal Misc. No. M-29775 of 2009 (O&M) -4- before court and not on the 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)(a)(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 not to be passed mechanically. In re: Ram Singh & Others (supra), again the Apex Court ruled that “Court should summon a person as an additional accused only when the Court is satisfied that evidence against him would lead to conviction.” The legal ground is clear. Now it is to be noticed as to whether in view of the afore-quoted law, the learned trial Court was justified in summoning the petitioners to face trial along-with their co-accused. The operative part of the impugned order reads as under:- “The evidence as deposed by PW1 Ravinder Singh prima facie shows that persons now sought to be summoned as additional accused inflicted injuries not only to the complainant Ravinder Singh but also to his brother as well as cousin brother and the Criminal Misc. No. M-29775 of 2009 (O&M) -5- entire occurrence took place three times in a row. There are thus sufficient grounds made out for proceeding against above named Visakha Singh, Bhupinder Kaur, Parkasho, Karam Kaur, Prem Singh, Ajaib Singh and Bulli, for the offence punishable under Sections 307/326/324/323/148/149 IPC. The application is accordingly allowed and aforesaid persons are ordered to be summoned to face trial for above said offence as additional accused.” Palpably, the impugned order reflects non-application of mind. The learned trial Court has not recorded its satisfaction that the evidence adduced against the petitioners, if goes unrebutted would lead to conviction. Sequelly, the impugned order is set aside, with a direction to the learned trial Court to reconsider the application moved under Section 319 of Cr.P.C in the light of the afore-quoted law. Disposed of accordingly. November 18, 2009 ( HARBANS LAL ) renu JUDGE