Crl. Rev. No. 583 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 583 of 2011 (O&M) Decided on : 14-09-2011 Mulakh Raj ....Petitioner VERSUS State of Punjab and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Sanjiv Gupta, Advocate for the petitioner Mr. B.B.S.Teji, Sr. DAG, Punjab Ms. Maninder Kaur, Advocate for Mr. G.S.Sandhu, Advocate for the respondent no.2. MAHESH GROVER, J This revision petition is directed against the order dated 16.2.2011 vide which the petitioner was summoned under the provisions of Section 319 Cr.P.C to stand trial for an offence under Sections 367/120 IPC. According to the FIR which was registered on the basis of the statement made by the complainant who is wife of the deceased that her husband with whom her marriage had been solemnized 7-8 years back were having a domestic dispute inter se between them. Divorce was granted about 4 to 5 years back. Thereafter, she alongwith her husband again started living together but their family was not happy with it. Therefore some of the relations had started exercising exorcism and black magic. She alleged that some substance had been given to her husband after mixing it with the water after which he started feeling unwell. On 16.5.2009 her husband left the house without any intimation and was found subsequently Crl. Rev. No. 583 of 2011 (O&M) 2 drowned in a canal. She therefore stated that her husband had committed suicide in Bhakhra canal due to instigation of her mother Sibo, father Pal, brother Sukha, maternal aunt Darshana, Mulakh Raj, MC Nabha and tantrik Mam Raj. The Trial progressed against the accused but the petitioner, since he had been exonerated by the police was left out of the course of trial. In an application moved under Section 319 Cr.P.C he has now been summoned by virtue of the impugned order. In the statement made before the Court, the complainant stated that some ash like material was administered to Karan deceased in connivance with Mulakh Raj but this substance according to the material available on record was given in 2004 and there is no suggestive material to suggest that anything was given to the deceased by the petitioner in 2009 on or around the date when he went missing. It is settled principle of law that to summon a person under Section 319 Cr.P.C, the evidence and record should be qualitatively sufficient to warrant a conviction and the Trial Court is expected to record a finding to that effect. A person should not be summoned under Section 319 Cr.P.C if the aforesaid parameters are not met and merely because names crops up in the statement of the complainant should not be made the basis for summoning a person to stand trial. In Brindaban Das and others Versus State of West Bengal, 2009(1) R.C.R. (Criminal) 672 (S.C.), their Lordships of the Supreme Court, while dealing with a matter pertaining to the provisions of Section 319 of the Cr.P.C., held as under:- “There must be substantive evidence against a person in order to summon him for trial, although he is not Crl. Rev. No. 583 of 2011 (O&M) 3 named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction.” In Ram Pal Singh & Ors. Versus State of U.P. & Anr., 2009(2) R.C.R.(Criminal) 131 (S.C.), the Apex Court observe din paragraph 16 of the judgment as under:- “16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” In Sarabjit Singh & Anr. Versus State of Punjab & Anr., 2009 (3) R.C.R. (Criminal) 388, their Lordships of the Supreme Court elaborately interpreted the provisions of Section 319 of the Cr.P.C. Paragraphs 16 and 17 of the judgment read as under:- “16. We have noticed hereinbefore that Mohd. Shafi (supra) has been explained in Lal Suraj (supra) holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence bought before it and not on the basis of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Crl. Rev. No. 583 of 2011 (O&M) 4 Court in Municipal Corporation of Delhi (supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. 17. The provisions of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr., 2007(2) RCR (Criminal) 1014 : 2007(3) RAJ 69: [JT 2007(6) SC 460], this Court opined: “.....Undisputedly, 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. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court.......” An order under section 319 of the Code, therefore, should not be passed only because the first informant or one of Crl. Rev. No. 583 of 2011 (O&M) 5 the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.” A learned Single Judge of this Court in Mann Singh & others Versus State of Punjab & another, 2009(2) R.C.R. (Criminal) 289 (P&H), while considering the provisions of Section 319 Cr.P.C., observed in paragraphs 15 and 16 of the judgment as under:- “15. If the evidence given by a witness is to be ignored only on the ground that same is a repetition of what was stated by the witness and considered by the investigating agency to say that person is not to be added as an accused, it would amount to giving primacy to the police which cannot be done in view of Y.Saraba Reddy's case (supra). The Hon'ble Supreme Court has clearly held that the conclusion that the IO's satisfaction should be given primacy is unsustainable. 16. Each case is to be decided on the facts of its own. An authority has to be understood in the context of facts based on which the observations therein are made.” Similarly, in Michael Machado & Anr. Vs. Central Bureau Crl. Rev. No. 583 of 2011 (O&M) 6 of Investigation & Anr. 2000 (2) RCR (Crl.) 75 (SC), their Lordships of the Supreme Court while construing the words “the court may proceed against such person” appearing in Section 319 Cr.P.C, held that “the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence.” It was further held that “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.” Since the impugned order does not conform to the requisite parameters as laid down by the Hon'ble Supreme Court and all the evidence on record is not qualitative enough so as to lead to an impression or an inference that the same is likely to result in conviction of the accused, I am of the considered opinion that the petitioner has been summoned erroneously. Hence, the instant petition is allowed and the impugned order dated16.2.2011 is hereby set aside. However, at any stage of the trial, some other material comes on record which can meet the aforesaid parameters as laid down by the Hon'ble Supreme Court then the instant order shall not be construed to be a bar for the Court to summon the petitioner. September 14, 2011 (Mahesh Grover) rekha Judge