Criminal Revision No. 1992 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1992 of 2009 Date of decision : September 17, 2009 Ram Niwas ....Petitioner versus State of Haryana and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Arvind Thakur, Advocate, for the petitioner Mr. Sidharth Sarup, AAG Haryana for respondent no. 1 Mr. KS Gogia, Advocate for respondent nos. 2 to 6 L.N. Mittal, J. (Oral) Ram Niwas has filed this revision petition assailing order dated 18.7.2009 passed by learned Additional Sessions Judge, Fatehabad thereby dismissing prosecution application filed under section 319 of Code of Criminal Procedure (for short, Cr.P.C. ) for summoning private respondent nos. 2 to 6 as additional accused to face trial along with Kulwant Singh etc. seven other accused who have been arrayed by the police to face trial in case FIR No. 116 dated 13.5.2007, under sections 148,302,307 read with Criminal Revision No. 1992 of 2009 -2- section 149 IPC and section 25 of Arms Act, Police Station Bhattu Kalan, District Fatehabad. I have heard learned counsel for the parties and perused the case file. The petitioner lodged FIR implicating the private respondents as well as the accused arrayed by the police. However, police after investigation presented challan for prosecution of Kulwant Singh etc. seven accused only and found respondent nos. 2 to 6 to be innocent. During trial of Kulwant Singh etc. the petitioner appeared as PW1 and repeated his version. Thereafter, prosecution filed application under section 319 Cr.P.C. for summoning respondent nos. 2 to 6. The said application was initially dismissed by learned Additional Sessions Judge, Fatehabad vide order dated 24.10.2008, Annexure P/1. The petitioner challenged the said order by filing Criminal Revision No. 2686 of 2008 which was disposed of by this Court vide order dated 29.5.2009, Annexure P/2, holding, interalia, that the statement of the petitioner made in the witness box could not be discarded merely because the same was identical to the statement made by the petitioner before the police on the basis of which the private respondents were found to be innocent. It was observed that the evidence adduced before court has primacy over material collected or conclusion drawn by the police during investigation. It was also observed that the court below committed error of jurisdiction by relying on the investigation carried out by the police to discredit the deposition on oath. Consequently, order dated 24.10.2008, Annexure P/1 was set aside and the matter was remitted to the learned Additional Sessions Judge to decide the application under section Criminal Revision No. 1992 of 2009 -3- 319 Cr.P.C. afresh, in accordance with law. Thereafter, learned Additional Sessions Judge again dismissed the said application vide impugned order dated 18.7.2009. Learned counsel for the petitioner vehemently contended that learned Additional Sessions Judge has again dismissed the prosecution application under section 319 Cr.P.C. on the ground that the statement of the petitioner is not sufficient to summon the private respondents. However, basic thrust of the impugned order is that the private respondents were found innocent by the police and therefore, they could not be summoned as additional accused. Learned counsel for respondent nos. 2 to 6 contended that these respondents were found innocent by the police and there is no fresh material for summoning them as accused to face trial. I have carefully considered the rival contentions. The conclusion drawn by the police is not binding on the court while deciding application under section 319 Cr.P.C. If the court has to go by the conclusion of the police, then two dangerous consequences will follow. Firstly, the police conclusion would be final and the aggrieved person would be rendered remediless. Secondly, provision of section 319 Cr.P.C. would be rendered redundant. This cannot be done. The evidence led during trial is on oath. The court while deciding application under section 319 Cr.P.C. has to base its conclusion on the basis of said evidence and not on the basis of the conclusion arrived at by the police. The contention that statement of the petitioner in the witness box is similar to the statement made by him before the police, on the basis Criminal Revision No. 1992 of 2009 -4- of which the private respondents were found innocent, also cannot be accepted to dismiss prosecution application under section 319 Cr.P.C. for the simple reason that statement in the witness box by a witness has to be similar to the statement made before the police because otherwise statement made in the witness box, if it makes departure from the statement made before the police would be liable to be discarded on the ground of material improvement made in the court and on the ground of a new version being put forth in the court for the first time. In the instant case, Subhash respondent no. 5 along with Mahabir (who has been arrayed as accused by the police) caught hold of Surender who was murdered in the occurrence. Respondent no. 2 Ram Niwas son of Mahabir and Kaur Singh accused caught hold of Manoj who suffered injuries in the occurrence including injury falling within the purview of section 307 IPC. Munshi Ram respondent no. 4 and Rohtas arrayed as accused caught hold of Ashok. Balbir respondent no. 6 along with Sher Singh arrayed as accused caught hold of complainant-petitioner Ram Niwas son of Amar Singh. Hanuman respondent no. 3 was driving Bolero vehicle whereas Ram Niwas respondent no. 2 was driving motorcycle on which all the accused persons including private respondents came to the spot. It is surprising that Subhash, Ram Niwas, Munshi and Balbir, respondent nos. 5,2,4 and 6 respectively have been found innocent whereas Mahabir, Kaur Singh, Rohtas and Sher Singh have been challaned by the police, although the role attributed to them was also respectively similar as the role attributed to respondent nos. 5,2,4 and 6 respectively. There is no Criminal Revision No. 1992 of 2009 -5- justification for this differential treatment to the persons against whom there were similar allegations. As regards respondent no. 3 Hanuman, he was driving Bolero vehicle in which most of the co-accused came to the spot. In view of the aforesaid, there is sufficient ground for proceeding against respondent nos. 2 to 6 as well for trial along with seven accused who have been challaned by the police. Learned Additional Sessions Judge committed grave error and illegality in dismissing the prosecution version filed under section 319 Cr.P.C. by even ignoring the observation of this Court in order dated 29.5.2009, Annexure P/2, passed on the same subject whereby the matter was remanded to learned Additional Sessions Judge. In view of the aforesaid, the instant revision petition is allowed and the impugned order dated 18.7.2009 of learned Additional Sessions Judge, Fatehabad is set aside and prosecution application filed under section 319 Cr.P.C. before the trial court is allowed and respondent nos. 2 to 6 are ordered to be summoned as additional accused to face trial along with Kulwant Singh etc. who have been challaned by the police. Respondent Nos. 2 to 6 are directed to appear in the trial court on 23.9.2009. ( L.N. Mittal ) September 17, 2009 Judge 'dalbir'