IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 17, 2011 Crl. Revision No. 3126 of 2010 (O&M) Ranjit Singh …Petitioner Versus State of Punjab …Respondent ***** Crl. Revision No. 224 of 2011 (O&M) Ajay Pal Singh …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Bhrigu Dutt Sharma, Advocate, for the petitioners. Mr. K.D. Sachdeva, Addl.A.G., Punjab, for the respondent-State. Mr. Yusuf Mohd., Advocate, for the complainant. Alok Singh, J. Present two revision petitions viz. Crl. Revision No. 3126 of 2010 and Crl. Revision No. 224 of 2011 are filed challenging the order dated 27.08.2010 passed by CRR No. 3126 of 2010 learned Additional Sessions Judge, Jalandhar, in Sessions Case No.18 of 2008 pursuant to FIR No. 34 dated 20.03.2008, under Sections 307, 326, 324, 323, 1481/149 of the Indian Penal Code, registered at Police Station Bhogpur, Jalandhar, whereby learned Trial Court has summoned the present revisionists as additional accused under Section 319 of the Code of Criminal Procedure to face the trial. Brief facts, inter-alia, are that Manjinder Singh has lodged an FIR on 20.03.2008 stating therein as under:- “I am resident of the above address and an agriculturist. Yesterday, on 19.3.2008, I, my younger paternal uncle Gurdeep Singh son of Swinder Singh, resident of Ladhran and Jagdeep Singh son of Ranjit Singh, resident of Moga after doing some personal work were coming back from Bhogpur to our village. I was residing my motorcycle while my uncle was driving his Innova Vehicle and following me. When at about 6.30 p.m., I reached O.B.C. Bank, Bhogpur, Ranjit Singh was standing near the bank and a Cherry coloured Scorpio Vehicle was parked near him. I could not read the number of the same. On seeing me, Ranjit Singh gave a signal to the persons 2 CRR No. 3126 of 2010 sitting in the vehicle that he is going and let he be taught a lesson. The driver of the Scorpio hit it in my motorcycle and I fell down. When I got up then I saw Ajay Pal Singh armed with Datter, Ranjodh Singh son of Resham Singh, resident of Nangal Jamal armed with Datter, Parminder Singh @ Pinder son of Dharam Singh, resident of Manak Dherian armed with Kirpan, Parminder Singh @ Sonu son of Jasvir Singh resident of Manak Dherian armed with Kirpan and 3-4 unidentified persons who were carrying iron rods, whom I can identify on seeing, alighted from the vehicle and ran towards me. I, in order to save myself started running. When I reached Adampur Chowk, the above said persons encircled me. Parminder Singh with his Kirpan gave three blows to me which fell on my head. Then Ranjodh Singh with his Datter gave six continuous blows on my left leg. Then Parminder Singh @ Sonu with his kirpan gave two blows on my left arm and hand. Then I fell down and then Ajay Pal with his Datter gave blow on my right leg which hit on my ankle. I raised an alarm `Mar Ditta’ `Mar Ditta’ then my uncle and Jagdeep Singh collected people and saved me 3 CRR No. 3126 of 2010 from these assailants. On seeing the people, the assailants ran away with their respective weapons in the vehicle. The above said persons with an intention to kill me have caused injuries on my head, body and other parts and injured me. While leaving the above said assailants also took away a bag containing Rs.25,000/-. The cause of the grudge is that a month back I had an altercation with Pinder at Taxi Stand on account of parking of the vehicle. Action may be taken as per law against them.” Investigation in the present case was carried out by the Superintendent of Police (Headquarter), and it was found that the petitioners are not, at all, involved in the present occurrence and have been falsely implicated. It was further found during the investigation that petitioners were not present on the spot and Ranjit Singh – revisionist was present in the bank; while revisionist Ajay Pal Singh was present at his house at a distant place from the place of alleged occurrence. No challan was filed against the revisionists and their names were shown in column no.2 of the challan. During the trial, complainant-injured Manjinder Singh was examined as PW1. He has stated on oath, while 4 CRR No. 3126 of 2010 appearing in the witness box, that revisionist – Ranjit Singh raised a lalkara and had said that PW1 should not be spared today and be killed. It is also stated that Parminder Singh accused present in the Court gave a kirpan blow which hit on the center of head. Parminder Singh gave three blows of kirpan on his head and thereafter, accused Ranjodh Singh, who was present in the Court, also gave six blows of datter which hit on his left leg on the lower portion. Dharminder Singh – accused gave two kirpan blows on his left arm and hand. Revisionist – Ajay Pal Singh gave datter blow which hit on his right leg on knee joint. It is also stated that his uncle Gurdeep Singh and Jagdeep Singh collected the people at the spot and on seeing the people, all the accused ran away from the spot along with their respective weapons in their vehicle. PW1 – Manjinder Singh has stated in his cross- examination as under:- “One month prior to this occurrence, we quarrel with the accused and said occurrence took place at the Taxi Stand. That occurrence took place between me and Parminder Singh. Nobody was injured on that day. I did not report the matter regarding the previous occurrence to the police. Occurrence took place only with Parminder Singh, 5 CRR No. 3126 of 2010 none of the other accused was present at that time except Parminder Singh. I do not know whether Parminder Singh has sold vehicle bearing No. PB07-5969 to one Kamaljit Singh, resident of Rurkowal, Ramdaspur one month prior to the occurrence. It is correct that S.P. (HQ) conducted inquiry in the present case. I also appeared before S.P. (HQ) conducted inquiry in the present case. I also appeared before SP (HQ). Other prosecution witnesses in the case also appeared before SP (HQ).” On application being moved by the prosecution to summon the present revisionists as additional accused, learned Trial Court having observed that “a person can be proceeded to face trial when prima facie case is made out. It means that there is ground for proceeding on the evidence available on record”. According to the report under Section 173 Cr.P.C., both the above said accused have been declared innocent by the police in column No.2. As per statement of Manjinder Singh complainant, accused Ranjit Singh raised lalkara and stated that he be not spared and accused Ajay Pal Singh gave Datter blow which hit on his right leg on knee joint. Material is sufficient to prima-facie 6 CRR No. 3126 of 2010 summon Ranjit Singh and Ajay Pal Singh as additional accused.” I have heard learned counsel for the revisionists, as well as, learned Additional Advocate General, Punjab, as well as, learned counsel for the complainant and perused the record. Hon’ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, reported in 2009(2) RCR (Criminal) 131, in paragraph Nos. 15 and 16 has observed as under:- “15. The ingredients of Section 319 are unambiguous and indicate that where in the course of 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 he has committed. 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 7 CRR No. 3126 of 2010 also clear that the discretion is left to the Court to take a decision on the matter.” Hon’ble Apex Court in the matter of Suman versus State of Rajasthan and another, reported in 2010(1) Criminal Court Cases, 269 (S.C.), in paragraph no.11 has held as under:- “11. Section 319 Cr.P.C. applies to all the Courts including the Sessions Court. It empowers the Court to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a summons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub-section (4) lays down that where the Court proceeds against any person under sub-section (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. A reading of the plain language of sub-section (1) of Section 319 Cr.P.C. 8 CRR No. 3126 of 2010 makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the Court finds that such person has committed any offence for which he could be tried together with the other accused.” Hon’ble Apex Court in the matter of Sarabjit Singh and Anr. Vs. State of Punjab and another reported in 2009(16) SCC 46, in paragraph no.17 has observed as under:- 17……. 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 9 CRR No. 3126 of 2010 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 Apex Court in the matter of Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr. reported in 2000(3) SCC 262 in paragraph Nos. 11 and 12 has observed as under:- “11. 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, 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 10 CRR No. 3126 of 2010 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.” This Court in the matter of Shivraj Singh vs. State of Haryana and others, Crl. Revision No. 1551 of 2010, decided on 17.02.2011 having placed reliance on 11 CRR No. 3126 of 2010 the various judgments of the Hon’ble Apex Court including the judgments cited herein above has held as under:- “From the perusal of the judgments of the Apex Court (supra), it can safely be held that power under Section 319 of the Code can be exercised only when from the evidence available on the record involvement of the accused is found by the Court and evidence so led before the Court if stands unrebutted would result in the conviction of the accused sought to be summoned. However, mere suspicion about the involvement of the accused to be summoned from the evidence available on record would not justify the exercise of power under Section 319 of the Code. Power under Section 319 of the Code is the discretionary power and should be used very sparingly with great care and caution.” Having perused the statement of PW1, it can safely be said that PW1 has made bald allegation against the revisionist-Ranjit Singh. The Superintendent of Police (Headquarter) has submitted his report on 30.04.2008 that Ranjit Singh is an employee of the Bank and he was present in the Bank along with the other staff of the Bank from 10 AM to 7 PM. It has further been found by the 12 CRR No. 3126 of 2010 Superintendent of Police (HQ) that Ajay Pal Singh, son of Ranjit Singh was also implicated in the present incident, saying that Ajay Pal Singh – revisionist, son of Ranjit Singh – revisionist, gave datter blow on the right leg on knee joint. During the investigation, it was also found by the Superintendent of Police that Ajay Pal Singh was present at his house which was far-far away from the place of occurrence. No doubt, power under Section 319 of the Code can be exercised by the Court when Court is satisfied that entire evidence if stands unrebutted would lead to the conviction but the power under Section 319 of the Code should be exercised very sparingly and with great caution. The power under Section 319 of the Code should not be invoked lightly merely because prosecution witness, while appearing in the witness box, has made statement about the complicity of the persons sought to be summoned as additional accused unless and until such statement transpires confidence and Court finds that such statement is cogent and if stand unrebutted shall result in the conviction and trial of the person sought to be summoned seems to be justified for compelling reasons. At the time of invoking Section 319 of the Code, Court must keep in mind that if ground taken in the investigation not to file challan 13 CRR No. 3126 of 2010 is found to be true during the trial statement of the prosecution witness would stand rebutted and shall not lead to the conviction. In the present case, learned Trial Court has not observed that statement of PW1 Manjinder Singh if stand unrebutted would lead to the conviction. However, perusal of the entire material and statement of PW1, I am fully satisfied that if fact found by the Superintendent of Police (Headquarter) during the investigation that Ranjit Singh was present in the bank from 10 AM to 7 PM and his son Ajay Pal Singh, another revisionist, was present at his house at a distant place from the place of alleged occurrence is proved, statement of PW1 shall stand rebutted and would not lead to the conviction. Mere suspicion on the basis of the statement of the prosecution witness is not a sufficient ground to invoke Section 319 of the Code. In the opinion of this Court, order passed by the learned Trial Court cannot be sustained in the eyes of law. Both the revision petitions are allowed and the impugned order shall stand set aside. March 17, 2011 ( Alok Singh ) vkd Judge 14