Crl.Rev.No. 2619 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 2619 of 2008 (O&M) Date of decision: 05.8.2010 Naresh Kumar @ Ladi ......Petitioner Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Ms.G.K.Mann, Advocate, for the petitioner. Mr.Amandeep Singh Rai, AAG, Punjab. Mr.H.S.Baath, Advocate, for respondent No.2. **** SABINA, J. This petition has been filed by the petitioner under Section 401 of the Code of Criminal Procedure (“Cr.P.C” for short) challenging the order dated 11.11.2008 passed by the Additional Sessions Judge, Amritsar, whereby the application filed by the prosecution under Section 319 Cr.P.C. for summoning respondent No. 2 as an additional accused was dismissed. Learned counsel for the petitioner has submitted that Crl.Rev.No. 2619 of 2008 (O&M) 2 there was sufficient material available on record to summon respondent No.2 as an additional accused. The trial Court had erred in dismissing the application under Section 319 Cr.P.C. filed by the prosecution. In support of his arguments, learned counsel for the petitioner has placed reliance on the decision of the Apex Court in Bholu Ram vs. State of Punjab (2008) 3 SCC (Crl.) 710, wherein in para Nos. 20 and 21, it was held as under:- “Section 319 of the Code empowers a court to proceed against any person not shown to be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried together with the accused. Section 319 of the Code reads thus:- “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. 2. Where such person is not Crl.Rev.No. 2619 of 2008 (O&M) 3 attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. 2) 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. 3) 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.” “Sometimes a Magistrate while hearing a case against one or more accused finds from the evidence that some person other than the accused before him is also involved in that very offence. It is only proper that a Magistrate should have power to summon by joining such person as an accused in the case. The primary object Crl.Rev.No. 2619 of 2008 (O&M) 4 underlying Section 319 is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.” Learned counsel for respondent No.2 has submitted that the witness, while appearing in the witness box, had made material improvements in the prosecution story. Respondent No.2 could not be ordered to be summoned to face the trial merely on the basis of suspicion. After hearing learned counsel for the parties, I am of the opinion that this petition deserves dismissal. As per Section 319 Cr.P.C., whenever in the course of trial, it appears from the evidence that any person not being accused had committed the offence for which he could be tried together with the accused facing the trial, the Court may proceed against such person for the offence which he appears to have committed. A perusal of the FIR (Annexure P-4) reveals that on 16.3.2008 at about 11.30 a.m. Hira Singh armed with a naked kirpan Crl.Rev.No. 2619 of 2008 (O&M) 5 came to the shop of the complainant and inflicted injuries on the person of complainant-Paramjit Rai @ Pamma. Hira Singh was allegedly sitting at the shop of Sahib Singh. On the alarm raised by the complainant, Hira Singh gave another blow with a kirpan on the left phlank of the complainant. When father and brother of the complainant reached the spot, they tried to catch hold of Hira Singh but he managed to escape. He had suspicion that Sahib Singh had sent Hira Singh to inflict injuries on his person. Later on the complainant succumbed to his injuries. Thus, from the reading of the FIR, it transpires that injuries had been inflicted on Paramjit Rai @ Pamma by Hira Singh with a kirpan but he had a suspicion that Sahib Singh had sent Hira Singh to inflict injuries on his person. On the other hand, PW-1 Naresh Kumar @ Ladi and PW-2 Ravinder Kumar, in their statements, deposed that Hira Singh inflicted injuries on the person of the complainant on the instigation of Sahib Singh, whereas, the injured himself has nowhere mentioned in the FIR that Sahib Singh had exhorted Hira Singh to inflict injuries on his person and thereafter, the injuries were inflicted on his person by Hira Singh. Thus, the witnesses had given an improved version. The injured himself was the best person to state whether Hira Singh had inflicted injuries on his person on a lalkara raised by Sahib Singh. Rather the injured only had a suspicion that Sahib Singh had sent Hira Singh to inflict injuries on his person. In these circumstances, learned trial Crl.Rev.No. 2619 of 2008 (O&M) 6 Court rightly held that the application filed by the prosecution under Section 319 Cr.P.C was liable to be dismissed. Sahib Singh- respondent No.2 cannot be summoned as an additional accused merely on the basis of suspicion. Since the challan was not presented against respondent No.2, it is evident that he was found innocent during investigation. The judgment relied upon by learned counsel for the petitioner fails to advance the case of the petitioner as it is based on different facts. No ground for interference by this Court is made out. Dismissed. SABINA) JUDGE August 05, 2010 anita