Crl. Revn. No. 1430 of 2010 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revn. No. 1430 of 2010 DATE OF DECISION: 28.07.2010 Anil Kumar & Ors. ..........Petitioners Versus State of Haryana ..........Respondent BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Sanjay Vashisht, Advocate for the petitioners. **** DAYA CHAUDHARY, J. The present revision petition has been filed against order dated 5.5.2010 passed by Additional Sessions Judge (II), Bhiwani passed in session case No. 20 of 2009 arising out of FIR No. 166 dated 24.3.2009 registered under Sections 307, 498-A, 406 IPC at Police Station, Bhiwani, whereby, petitioners have been summoned as an additional accused under Section 319 Cr.P.C. to face trial along with co-accused. Learned counsel for the petitioners contends that the petitioners have wrongly been summoned as an additional accused without taking into consideration the allegations levelled against them. During investigation, the petitioners were found innocent and it was found that only Naresh Kumar, Ram Rati and Mukesh were present at the time of occurrence. It was also found that Mukesh was not on speaking terms with the complainant and as such only Ram Ratti and Naresh were found to have committed the offence. Learned counsel further contends that even as per version of the complainant there were 10-11 injuries on her person but none of those were grievous as per opinion of the Doctor. There is no opinion to the effect that the alleged injuries suffered by complainant- Crl. Revn. No. 1430 of 2010 (2) Sharmila Devi were the result of knife only and even the injuries were not described neither grievous nor dangerous to life and as such in absence of any evidence or opinion, the involvement of more than one person is highly doubtful. The summoning order has been passed only on the basis of statement of Satender Kumar (PW-1) and Sharmila Devi (PW-2). Satinder Kumar (PW-1), who is alleged to be an eye witness of the occurrence has totally demolished the case of the prosecution. Only statement of Sharmila Devi (PW-2) is left on the record, on the basis of which, the petitioners have been summoned as an additional accused to face trial. Learned counsel relied upon several judgments of Hon’ble the Supreme Court as well of this Court, wherein, it has been held that the power under Section 319 Cr.P.C. should not be exercised when there is no corroboration to the statement of the complainant. To support his argument, he has relied upon Sarabjit Singh and another Vs. state of Punjab & Anr. 2009 (3) RCR (Criminal) 388 (SC), Gurmeet Kaur Vs. State of Punjab and another 2010 (1) RCR (Criminal) 195 (P&H) and Hukam Chand & Anr. Vs. State of Haryana & Anr. 2007 (3) RCR (Criminal) 141. I have heard the arguments advanced by learned counsel for the petitioners and have also gone through the impugned order. As per prosecution story, on 23.3.2009 a telephonic message was received from police post General Hospital, Bhiwani regarding admission of Ram Ratti and Sharmila Devi due to scuffle and administration of some poisonous substance. Upon this, the police party reached to the General Hospital, Bhiwani, where they were informed that the injured were referred to PGIMS Rohtak. The police party reached PGIMS, Rohtak and it was informed that Ram Ratti had already expired and injured Sharmila Devi was found fit to make statement. Her statement was recorded. She narrated that she was married to accused-Naresh Kumar in November, 2003 and sufficient dowry was given at the time of Crl. Revn. No. 1430 of 2010 (3) marriage but her mother-in-law, father-in-law, husband and brother-in-law started taunting and harassing her for not bringing sufficient dowry. She remained in her parental house for this reason but due to intervention of Panchayat, she came to her matrimonial home on 23.3.2009. On the same day, her husband Naresh Kumar, devar-Anil, mother-in-law-Ram Ratti, father-in-law Giani Ram and one Suresh asked her to bring Rs.1 lakh from her parents and on her refusal they started to give her beatings. Thereafter, on instigating by her mother-in-law and husband, she was asked to leave the house but on refusal her mother-in-law, father-in-law and devrani caught hold of her and her husband and brother-in-law gave knife injuries on her head. Her brother-in-law also gave knife injury on her breast. Similarly two more knife blows were given on her neck and her brother-in-law again gave knife blow on her breast and hips. She gave a telephonic call to her parents prior to said occurrence, on which, her brother Krishan Kumar and her cousin reached at her matrimonial home. On seeing them all the accused ran away from the spot. Thereafter, she was hospitalized to General Hospital, Bhiwani and on the basis of her statement, present FIR was registered. Initially, the case was registered under Sections 307 and 498-A IPC against accused Naresh only but subsequently an application under Section 319 Cr.P.C. was moved on the basis of statement of two prosecution witnesses, namely, Satinder Kumar (PW-1) and complainant-Sharmila Devi (PW-2),which was allowed. Complainant-Sharmila Devi while appearing as PW-2 has specifically stated that her brother-in-law Anil and husband-Naresh gave knife blows on her head, breast and back. The names of these persons also find mention in the statements of witnesses recorded by the police under Section 161 Cr.P.C during investigation. Even in the statement made before the police specific allegations were there against all the accused and they have been attributed specific injuries on various parts of the Crl. Revn. No. 1430 of 2010 (4) person of the complainant. The allegations levelled in the FIR have been corroborated by the statements of Satinder Kumar (PW-1) and Sharmila Devi (PW-2). It is clear from the statement made by complainant-Sharmila Devi that she suffered injuries at the hands of petitioners, which are sufficient to summon them as it is a case of direct evidence showing the complicity of the accused-petitioners and the trial Court has summoned all the accused persons on the basis of that evidence. If sufficient evidence is there against the summoned person then they can be convicted on the basis of evidence led by the prosecution. If it appears to the Court that on the basis of evidence, accused persons so summoned can be convicted, then Court has power to summon them as an additional accused. The requirement of Section 319 Cr.P.C. is that if it appears from the evidence during trial that any person, who is not an accused, has committed any offence, for which such person can be tried together along with the accused, the said person can be summoned as an additional accused to the satisfaction of the Court and basic requirement is that if prima facie conclusion has been drawn by the Court that a person to be summoned appears to have committed that offence then that person can be summoned under Section 319 Cr.P.C. The mandate of Section 319 Cr.P.C. is required to be understood so that proper decision can be reached. 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, the Court may proceed against such person for the offence which he appears to have committed. Crl. Revn. No. 1430 of 2010 (5) (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 has, while explaining the provisions of Section 319 Cr.P.C., stated in Kailash vs. State of Rajasthan and another, 2008 (2) RCR (Criminal) 200 as follows:- “ A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are “it appears from the evidence”.....”any person”......”has committed any offence. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the Court. This is apart from the fact that such person against whom such discretion is used, should Crl. Revn. No. 1430 of 2010 (6) be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words “it appears” are not to be read lightly. In that the Court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands.” While dealing with the term “evidence” as has been used in Section 319 Cr.P.C., the Hon'ble Supreme Court has, in Rakesh vs. State of Haryana, 2001 (3) RCR (Criminal) 681, held as follows:- “13. Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term "evidence" as used in Section 319 of the Criminal Procedure Code would mean evidence which is tested by cross-examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross-examining the witness prior to adding such person as accused. The Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be Crl. Revn. No. 1430 of 2010 (7) added as accused or not. The word "evidence" occurring in sub-section (1) is used in a comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the court and from which the court can prima facie conclude that the person not arraigned before it is involved in the commission of the crime." The Hon'ble Supreme Court on the scope and the extent of powers of the Court to summon persons as additional accused in the case of Municipal Corporation of Delhi vs. Ram Kishan Rastogi and others, 1983 (1) RCR (Criminal) 73 has held as follows:- "19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. xxx xxx xxx xxx” Dealing with the powers of the Court under Section 319 of the Code of Criminal Procedure, the Hon'ble Supreme Court in the case of Michael Machado and another vs. Central Bureau of Investigation and Crl. Revn. No. 1430 of 2010 (8) another, 2000 (2) RCR (Criminal) 75, held as follows in paras 11, 12, 14 and 16:- “11 The basic requirements 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, which 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. 12. But even then, what is conferred on the Court is only a 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 other persons. Xxx xxx xxx xxx xxx xxx xxx xxx 14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage Crl. Revn. No. 1430 of 2010 (9) where it had reached earlier. If the witnesses already examined are quite large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action. xxx xxx xxx xxx xxx xxx xxx xxx 16. The statements of those three witnesses were placed before us. No doubt the statements may create some suspicion against the appellants. But suspicion is not sufficient to hold that there is reasonable prospect of convicting the appellants of the offence of criminal conspiracy.” Admittedly, Section 319 (1) Cr.P.C. gives power to the Court for summoning of additional accused and to try with the other accused if prima facie there is sufficient evidence on record to make out a case against such person. If the Court has reasonable satisfaction from the record available that prima facie case is made out against that person only then he is to be summoned under Section 319 Cr.P.C. In the present case, in view of statement made by injured-complainant-Sharmila Devi, the trial Court has rightly reached to the conclusion that there is sufficient evidence on record to summon the petitioners as an additional accused to face trial. Accordingly, there is no merit in the contentions raised by learned counsel for the petitioners. The revision petition being devoid of any merit is hereby dismissed. July 28, 2010 (DAYA CHAUDHARY) pooja JUDGE Crl. Revn. No. 1430 of 2010 (10) Note:-Whether this case is to be referred to the Reporter .......Yes/No