Crl. Revn. No. 627 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revn. No. 627 of 2010 Date of decision: 04.03.2010 Rajpal s/o Sarupa, r/o Shahbad, Tehsil and District Faridabad. ....... petitioner Versus 1. Krishna w/o Shyambir, r/o village Shahbad, Tehsil and District Faridabad. 2. Jagat s/o Dharambir, r/o Shahbad, Tehsil and District Faridabad, 3. Dharambir s/o Parshadi, r/o Shahbad, Tehsil and District Faridabad, 4. State of Haryana through Advocate General, Haryana, Punjab and Haryana High Court, Chandigarh. ........ Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Jangvir Singh Hooda, Advocate for the revision-petitioner. **** Sham Sunder, J. This revision petition is directed against the order dated 06.02.2010, rendered by the Court of Additional Sessions Judge, Faridabad, vide which it dismissed the application, under Section 319 Cr.P.C., for summoning additional accused Dharambir, Jagat and Krishna, to face trial. Crl. Revn. No. 627 of 2010 2 2. I have heard the Counsel for the revision- petitioner, and have gone through the documents, on record, carefully. 3. The Counsel for the revision-petitioner, has submitted that respondent nos. 1 to 3, were not challaned by the Police as they were found innocent by it. He has further submitted that after the charge was framed against the accused, who were facing trial, and the statement of Ravi, injured was recorded on 04.08.2009, an application under Section 319 Cr.P.C., was moved, for summoning the aforesaid persons, as additional accused, to face trial. He has further submitted that, in his testimony, Ravi, injured, (PW-4) stated that Krishna, Dharambir and his brother Jagat, were involved in the commission of crime, as they inflicted injuries by hitting brick on his chest. He has further submitted that the complainant in his statement before the Police also mentioned the names of the aforesaid accused. He has further submitted that the Police, in collusion with the aforesaid accused/respondents, did not challan them. He has further submitted that the Court below, without taking into consideration the evidence of Ravi, injured, in its proper perspective, dismissed the application, under Section 319 Cr.P.C., illegally. He has further submitted that the order being illegal, is liable to be set aside. Crl. Revn. No. 627 of 2010 3 4. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the revision- petitioner, in my considered opinion, the petition is liable to be dismissed, for the reasons to be recorded hereinafter. Rajpal, (PW-3), was examined by the prosecution on 04.08.2009. He in his deposition, stated that Surjit gave a blow with lathi on the person of Ravi and then all Jitender, Parveen, Rajbir, Ajit, Krishna, Jagat and Surjit tried to hit him (Rajpal). He further stated that he fled from the spot, and entered into the house of his brother Jagdeep. There he was injured by Kanwaljit and Jitender with dandas and he rescued himself from the clutches of the accused. It was further stated by this witness that Kanwaljit inflicted a danda blow on the head of Ravi and other accused also joined Kanwaljit and assaulted Ravi, with the lathi. The Court below recorded that Rajpal, witness, made a statement, in the Court, which was completely contradictory to his statement, made by him to the Police, first in point of time. Ravi, injured, (PW-4) stated that he was caught by Dharambir and his brothers and that Kanwaljit and Parveen inflicted injuries on his person. He further stated that after sustaining the injuries, he fell unconscious. He also stated that a lady, hit him, on the chest with brick. The Court below, was thus, right in coming to the conclusion that the statements of Rajpal, (PW-3), an eye witness, and Ravi ,injured (PW-4), Crl. Revn. No. 627 of 2010 4 were completely contradictory to each other with regard to the sequence of events, as also in relation to the identity of the accused, as well as with regard the place of occurrence. No doubt, under Section 319 Cr.P.C., the Court has a discretion to summon any additional accused, to face trial, if there is evidence against him, which could reasonably lead to his conviction. Merely, on the basis of suspicion, additional accused cannot be summoned. In Michael Machado and another v. Central Bureau of Investigation and another 2000 (2) RCR (Criminal) 75, the principle of law, laid down, was to the effect that the basic principle, for invoking the provisions, of Section 319 Cr.P.C., was that it should appear to the Court, from the evidence, collected during the course of trial, or in the inquiry, that some other person, who was not arraigned, as an accused, in this case, had committed an offence, for which that person should be tried together, with the accused already arraigned. It was further held by the Apex Court, in the aforesaid case, that it is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person, in the offence. The Court must have reasonable satisfaction, from the evidence, already collected, regarding two aspects, firstly that the other person had committed an offence and secondly for such offence the other person could as well be tried alongwith the already arraigned accused. In Crl. Revn. No. 627 of 2010 5 Goriya alias Tabassum v. State of Bihar, 2007 (4) RCR (Criminal) 497, it was held that the power is discretionary, and, such discretion must be exercised judiciously, having regard to the facts and circumstances of the case. Since this is an extra-ordinary power, which is conferred on the Court, it should be used very sparingly, and, if compelling reasons exist for taking action, against a person, against whom, no action was taken earlier. In Krishnappa v. State of Karnataka 2004 (4) RCR (Criminal) 678 the principle of law, laid down was to the effect that there is no compelling duty on the Court to proceed against other person, and power under Section 319 Cr.P.C., to summon additional accused, is an extra-ordinary power, which should be used very sparingly and under compelling reasons to achieve criminal justice. The Court should not pass an order mechanically, merely on the ground that some evidence had come on record implicating the persons. The Court below, after taking into consideration, the factum that the statements of Rajpal, (PW-3) and Ravi, injured (PW-4) were contradictory to each other and that even the statement of Rajpal, PW-3, was contradictory to his first statement, made before the Police, was right in coming to the conclusion that from the evidence produced, on record, there was no reasonable prospect of conviction of the persons, sought to be summoned, as additional accused. The Court Crl. Revn. No. 627 of 2010 6 below, exercised the discretion, in a judicious manner. The discretion exercised, by the Court below in declining the application under Section 319 Cr.P.C., cannot be said to be arbitrary or capricious. The order impugned, does not suffer from any illegality or infirmity, warranting the interference of this Court. The same is liable to be upheld. 5. For the reasons, recorded above, the revision petition, being devoid of merit, must fail, and the same is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. (SHAM SUNDER) March 04, 2010 JUDGE dinesh