CRR No. 2790 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 2790 of 2009 Date of decision: 02.08.2010 Pargat Singh ........ Petitioner Versus State of Punjab .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Bikramjit Bajwa, Advocate for the petitioner Mr. K S Pannu, DAG, Punjab for the respondent State Mr. Vikram Chaudhari, Advocate for respondents No. 2 to 4 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a revision petition against the order dated 27.08.2009 passed by the learned Additional Sessions Judge, Amritsar, whereby, the application filed by the petitioner under Section 319 of the Code of Criminal Procedure was dismissed. The facts of the case, in short, are that Kamaljit Kaur, sister of the petitioner was married to respondent No. 2 -Rattan Singh about 16 years back and out of the said wedlock, a daughter, namely, Sandeep Kaur and a CRR No. 2790 of 2009 2 son, namely, Shere-e-Punjab was born. On 29.11.2008, at about 5.00 pm, uncle of the petitioner informed him that Kamaljit Kaur had died. Upon this, the petitioner along with other family members reached the cremation ground and saw that Kamaljit Kaur was already been cremated. Respondents No. 2 to 4 alongwith other few persons were stated to be present there. Accordingly, FIR No. 107 dated 29.11.2008 under Sections 302, 201, 34 of Indian Penal Code, Police Station Ramdas was lodged against respondents No. 2 to 4. Thereafter, upon investigation, a challan was presented only against Rattan Singh-respondent No. 2 but no action was recommended against respondents No. 3 and 4, namely Narinder Kaur Hundal and Gurdip Kaur alias Deepo, respectively. Subsequently, an application under Section 319 Cr.P.C. was moved on behalf of the prosecution to summon respondents No. 3 and 4. The said application was dismissed on 27.08.2009 by the Additional Sessions Judge, Amritsar on the ground that there was no material against respondents No. 3 and 4, namely Narinder Kaur Hundal and Gurdip Kaur alias Deepo, respectively to summon them as an additional accused. The present revision petition has been filed against the aforesaid order. While impugning the aforesaid order, the learned counsel for the petitioner submitted that the police for the reasons best known to it investigated the matter without associating the petitioner or his family members. Somehow, the petitioner came to know that the police is going to exonerate the accused persons named in the FIR for extraneous consideration and hence the petitioner approached this Hon’ble Court by filing CRM M 3167 of 2009 seeking appropriate direction to the concerned CRR No. 2790 of 2009 3 police to expedite the investigation and to present the status report of the investigation before this Hon’ble Court. Finally, said petition came up for hearing before this Hon’ble Court on 18.02.2009 and IO/SI Kuldeep Singh made a statement that challan was ready and the same will be presented within a week. It is further submitted that surprisingly, on the very next day, the learned Magistrate vide its order dated 19.2.2009 granted the concession of bail to respondent No. 2 merely on the ground that 60 days has already elapsed when he was arrested and challan has not yet been presented. On the very next day i.e. 20.02.2009, the police presented the challan under Section 306, 201, 34 IPC. As is clear from the challan, the challan was prepared on 28.01.2009 but the same was not presented before the trial Court until the accused-respondent No. 2 was granted the concession of bail. This, itself, goes to show that police withheld the challan only to enable respondent No. 2 to get the concession of bail in an offence under Section 302 IPC. Furthermore, the police has presented the challan under Section 306, 201, 34 IPC instead of 302/201/34 IPC merely on the ground that during investigation, it has been found that Kamaljit Kaur being fed up with her husband consumed some poison and died. Nothing has come on record as to on what basis, the police came to this conclusion. Secondly, the police converted the offence under Section 302 IPC to an offence under section 306 IPC on the ground that Kamaljit Kaur herself consumed some poison and died but in the chemical examination report, no poison has been found. Thirdly, Pargat Singh, present petitioner appeared as PW1 before the trial Court and specifically deposed that death of Kamaljit Kaur has been caused by her husband Rattan Singh, mother-in- CRR No. 2790 of 2009 4 law-Deepo and Narinder Kaur- sister-in-law in connivance with each other. The petitioner in his statement recorded under Section 161 Cr.P.C. also specifically named Deepo and Narinder Kaur but since the police was hand in glove with the accused, the police kept respondents No. 3 and 4 in column No. 2 while presenting the report under Section 173 Cr.P.C. Fourthly, after the passing of order dated 27.08.2009, PW2 to PW4 have also been examined and they have also specifically named respondents No. 3 and 4. Learned counsel for the parties were heard at length. In order to adjudicate upon the issue, it is relevant to go through the statement of PW1-Pargat Singh. The relevant portion thereof reads as under:- “Rattan Singh and his mother Deepo and sister Narinder Kaur along with other persons were standing there. I asked Rattan Singh why we were not informed about the death of Kamaljit Kaur and why you made cremation of dead body of Kamaljit Kaur without out permission. Then Rattan Singh stated that they have done what we have to do so. Then we were assured that death of Kamaljit Kaur has been caused by Rattan Singh and his mother Deepo and Narinder Kaur with connivance with each other by administering some poisonous substance.” Even as per the statement of PW2 which has come on record after the passing of the impugned order, relevant portion thereof reads as under:- “I received phone call of my brother Pargat Singh that my sister Kamaljit Kaur has died due to consuming CRR No. 2790 of 2009 5 some poisonous substance.” In his statement, PW3 also stated that:- “On 30.11.08, we came to know that Kamaljit Kaur deceased etc. was killed by Rattan Singh by giving poisonous substance. My statement was recorded.” Whereas, relevant chemical report, reads as under: “xx xx xx 1. xx xx 2. xx xx The contents of the packet were as follow: A sealed jar said to contain ash and bones. 3. xx xx The poison I was led to examine for were:- The result was as follows:- NO POISON detected in the contents of exhibit I.” From the above, it is clear that right from the beginning, the consistent stand of the petitioner as well as PW2 and PW3 was that Kamaljit Kaur had died due to consuming of some poisonous substance and that the same has been administered to her. Whereas, the chemical report of the bones of the deceased placed on record as Annexure P4 shows that “no poison detected in the contents of exhibit I”. Thus, the chemical report does corroborate the allegations levelled by the petitioner. There is no difference in the FIR and the statement made by PW1, on the basis of which, an application under Section 319 Cr.P.C. was moved. As per the reply filed by the State, the statement of son (aged 14 years) of the deceased, namely, Shere-e-Punjab was recorded and he reiterated his earlier stand as taken during the investigation that “my father Rattan Singh and paternal uncle Sukhdev Singh were feeding the milch animals with fodder outside their CRR No. 2790 of 2009 6 house and he and his mother Kamlajit Kaur were about to have tea and he only was near his mother. My mother suffered heart attack, my father brought a car and we rushed to hospital at Ramdas and when we were on our way to Amritsar Hospital from Ramdas, my mother died in the way. My aunt Narinder Kaur and my sister Sandeep Kaur are living in Amritsar. They came to Ramdas on receiving intimation. What so ever, my uncle (mama) Pargat Singh has got registered a police case against us. My father, my grandmother and my aunt (bhua) are innocent.” The statement of daughter Sandeep Kaur (aged 15 years) was also recorded during investigation, who stated that “she was studying at Amritsar and was living there with her aunt (bhua) and that she and her aunt came to Ramdas when they received intimation about the death of her mother.” Besides this, statement of as many as 16 other witnesses were also recorded. The daughter of the deceased is aged 15 years and son is aged about 14 years. The death had occurred after 14 years of marriage. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, considering the basic requirements of Section 319 of the Code, Court said: “The basic requirement 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, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertain 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 CRR No. 2790 of 2009 7 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 be tried along with the already arraigned accused.” In Krishnappa v. State of Karnataka reported as 2004 (4) RCR (Criminal) 678, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused. The Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388, in para 17, observed as under:- “17. The provision 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. [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 CRR No. 2790 of 2009 8 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 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.” Hon'ble the Apex Court in the case of Brindaban Das and others v. State of West Bengal reported as 2009(1) RCR (Criminal) 672, held, in para 19 and 20, as under:- “19. The fulcrum on which the invocation of Section 319 Cr.P.C. Rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable ti not only to prove its case but to also secure the conviction of the persons summoned. 20. In the instant case, on the quality of the evidence adduced by the prosecution as far as the appellants are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure a conviction against the appellants. The evidence which CRR No. 2790 of 2009 9 seeks to connect the appellants with the commission of the offence are hearsay in nature. Section 319 Cr.P.C. Contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. The law in this regard was explained in Ram Kishan Rastogi's case (Supra) and as pointed out by Mr. Ghosh, consistently followed thereafter, except for the note of discord struck in Rajender Singh's case (supra). It is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not 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.” And in the fact of that case, the Court held in para 21 as under:- “21. Since in the present case, except for a statement in the FIR that the complainant strongly believed that the murder of her father was pre-planned and there were many conspirators involved, there is no direct evidence of the complicity of the appellants in the incident, it would not be proper to subject the appellants to trial by invoking the provisions or Section 319 Cr.P.C.” In the present case, the allegations in the FIR were investigated into and the statements of the daughter and son of the deceased aged 15 and 14 years respectively were recorded by the investigating agency. There is not a word in the statement which may invite suspicion. In fact, the statement totally exonerate respondents No. 2 and 3. The bones of the CRR No. 2790 of 2009 10 deceased were sent for chemical examination. As per the chemical report, no poisonous substance was found. Thus, the allegation made in the statements of PW1, PW2 and PW3 that poison had been administered is not corroborated and the same is mere apprehension and hearsay. There is no direct evidence against respondents No. 2 and 3. Therefore, to summon the respondents No. 2 and 3 in these circumstances and in the face of absolutely no evidence at all, will not serve any useful purpose and does not fulfil the test laid down by the Apex Court in the cases of Michael Machado and Sarabjit Singh (supra). The evidence in the present case do not constitute any compelling reason to enable the Court to come to conclusion that it would warrant their prosecution with good chance of conviction. Learned counsel for the petitioner also raised an argument that another Single Bench of this Court while passing order in CRM M 5660 of 2009, came to the conclusion that the investigation was not conducted in a fair and impartial manner and therefore, an application under Section 319 Cr.P.C. moved by the prosecution should be accepted. The said order pertains to the cancellation of the bail granted to Rattan Singh-respondent No. 2, husband of the deceased. The same has no bearing on the application under Section 319 Cr.P.C. which requires to be decided on the basis of evidence before the Court. Therefore, by applying the test as laid down by the Apex Court, the present revision petition deserves to be dismissed as the evidence on record is not such as would reasonably lead to the chances of conviction of respondents No. 3 and 4. Hence, it would not be proper to summon CRR No. 2790 of 2009 11 respondents No. 3 and 4 to face trial under Section 319 Cr.P.C. in the facts of the present case. No merit. Dismissed. (Nirmaljit Kaur) Judge 02.08.2010 mohan