IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.M-1212 of 2010 Date of decision: 16.7.2010 Ruldu Khan ......Petitioner Vs. State of Punjab and another ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.G.N.Malik, Advocate, for the petitioner. Mr.Ranbir Singh Rawat, A.A.G.Punjab, for respondent No.1. Mr.Rajiv Anand, Advocate, for respondent No.2. **** ORDER The present petition has been filed by complainant for quashing of order dated 26.8.2009 passed by Additional Sessions Judge, Fast Track Court, Sangrur vide which the revision filed by accused-respondent No.2 against order dated 28.11.2007 of JMIC, Malerkotla summoning him as additional accused was allowed and order of trial Court was set aside. While issuing notice of motion on 15.1.2010, the following contentions were raised by the learned counsel for the petitioner: “ Learned counsel for the petitioner relied upon the judgment of Hon'ble the Apex Court in Harbhajan Singh and another V. State of Punjab and another 2009(3) R.C.R.(Criminal) 916 and of this Court in Hukam Chand and another Vs. State of Haryana and another 2007 (3) RCR (Criminal) 141 to contend that the impugned order has been passed without taking Crl.Misc. No.1212 of 2010 [2] into consideration the specific allegation against respondent No.2, which has been supported by the statement of Dr.Narinder Kumar PW-2.” The operation of the impugned order was also stayed on 15.1.2010. Respondent No.2 filed an application for vacation of the interim order passed on 15.1.2010. Mr.G.N.Malik, learned counsel for the petitioner submits that respondent No.2 was specifically named in the FIR and has also caused injuries to the petitioner. Even the petitioner made specific allegations against respondent No.2 while appearing in the Court as PW-1. The allegations made by the petitioner are duly supported by medical evidence as well as statement made by Dr.Narinder Kumar PW-2. Mr.G.N.Malik further submits that the trial Court had summoned respondent No.2 on the basis of specific allegations and evidence available on record but the revision was allowed and order of trial Court was reversed without giving any reason or finding. Learned counsel for respondent No.2 has argued that after registration of FIR, the matter was investigated in detail by the DSP and he was found innocent. The summoning order has been passed only on the basis of sole statement of complainant Ruldu Khan and there was no other evidence produced on file which could be considered as additional evidence. Although the doctor was examined but no evidence has come on record to connect accused-respondent No.2 with the alleged occurrence. Crl.Misc. No.1212 of 2010 [3] Learned counsel for respondent No.2 further submits that mere statement of complainant ipso facto cannot form the basis of summoning of the person under Section 319 Cr.P.C. Mr.Anand also relied upon the judgments of Hon'ble the Apex Court in Michael Machado and another Vs. Central Bureau of Investigation and another 2000(2) RCR (Criminal) 75, Krishnappa vs. State of Karnataka 2004(4) R.C.R.(Crimnal) 678, Kailash Vs. State of Rajasthan and another 2008(2) R.C.R.(Criminal) 200, judgment of this Court in KukamChand and another Vs. State of Haryana and another 2007(3) RCR (Criminal) 141 and Gurpal Singh Vs. State of Haryana 2001 (2) R.C.R.(Criminal) 580. I have heard the arguments of learned counsel for the parties and have also gone through the orders passed by both the Courts below. As per case of the prosecution, on 19.7.2005 complainant Ruldu Khan was coming to his house from his fields. Three persons, namely Moti, Jita and Marre Shah were standing near his house. Jita raised a lalkara to catch hold of him and on raising the lalkara, Marre Shah and Moti Khan (respondent No.2) encircled him. Moti Khan was armed with a stick and he scared and came running to his house. All three assailants while chasing the complainant, entered his house. Jita attacked the complainant by giving fist blows, Moti Khan asked them to teach a lesson. Moti Khan gave stick blows on his left shoulder and elbow. FIR was registered on the basis of statement made by the complainant. During investigation, accused Moti Khan was found innocent and was kept in column No.2. Statement of Ruldu Khan was again recorded. The State counsel moved an application for summoning of Moti Khan as an the Crl.Misc. No.1212 of 2010 [4] additional accused under Section 319 Cr.P.C. which was allowed by the trial Court and and summoned Moti Khan (respondent No.2) was summoned as an additional accused. Feeling aggrieved of the order passed by JMIC, Malerkotla, revision was filed by respondent No.2 which was allowed and order of trial Court was reversed. The present petition has been filed impugning the order passed in the revision petition. Admittedly, FIR was registered on the statement of complainant Ruldu Khan who mentioned the involvement of three persons namely, Moti Khan, Jita and Marre Shah. Investigation was conducted. Moti Khan was found innocent and was kept in column No.2. Application was moved by the State counsel for summoning of Moti Khan before the trial Court which was allowed and summoning order was passed by the trial Court only on the basis of statement made by the complainant. There was no other evidence on record to show involvement of respondent No.2. The statement of the complainant is merely a reiteration of what was said in the FIR. The mere statement ipso facto cannot form the basis of summoning the person under Section 319 Cr.P.C. Section 319 Cr.P.C. is reproduced as under:- 319. Power to proceed against other persons appearing to be guilty of offence. (1) where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, Crl.Misc. No.1212 of 2010 [5] the Court may proceed against such person for the offence which he appears to have committed. (2) where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) where the Court proceeds against any person under sub- Section (1) then-- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” The Hon'ble Supreme Court in Michael Machado and another Vs. Central Bureau of Investigation and another 2000 (2) RCR (Crl.) 75 (SC) has observed as under: “ 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 Crl.Misc. No.1212 of 2010 [6] person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained 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 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 as tried along with the already arraigned accused. But even then, what is conferred on the Court is only to discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. 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. It must be remembered that there is no compelling duty on the Court to proceed against each other persons.” Crl.Misc. No.1212 of 2010 [7] For summoning a person under Section 319 Cr.P.C as an additional accused, there has to be some evidence before the Court which would indicate the complicity of the person who is sought to be summoned or some material should have come on record which may prompt the Court to believe that the person so accused is likely to be involved and his conviction is likely to result in the eventuality of his facing the trial and the onslaught of the evidence to be adduced by the prosecution. The mere statement ipso facto cannot form the basis of summoning the person under Section 319 Cr.P.C. In the present case, there is no evidence on record except reiteration of the earlier statement of the complainant which cannot form the basis for summoning respondent No.2 as an additional accused. There is no merit in the contentions raised by the learned counsel for the petitioner and the petition being without any merit is dismissed. (DAYA CHAUDHARY) JUDGE Dated:16.7.2010 raghav