Criminal Revision No. 817 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 817 of 2009 (O&M) Date of decision: August 06, 2009 Nain Singh .. Petitioner v. State of Haryana .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Bijender Dhankar, Advocate for the petitioner. Ms. Ritu Punj, Deputy Advocate General, Haryana. Rajesh Bindal J. The petitioner, who has been summoned to face trial vide impugned order passed in an application filed by the prosecution under Section 319 Cr.P.C., is before this Court challenging the order. Briefly, the facts are that FIR No. 186 dated 1.7.2007 was registered under Section 302 IPC read with Section 25 of the Arms Act at Police Station, Sadar Palwal, District Faridabad, at the instance of Deepak son of Kartar Singh, brother of the deceased. It was with the allegation that one Udaivir came to their house at 7.00 O'clock in the evening and killed her sister with a pistol. It was further stated in the FIR that Udaivir was having relations with the petitioner. The petitioner is husband of the deceased. After investigation, the petitioner was found to be innocent and was put in column No. 2, whereas challan was presented against Udaivir. After recording the statement of the complainant, the prosecution filed application under Section 319 Cr.P.C. in which vide order dated 4.6.2008, the petitioner was summoned to face trial. The order was impugned before this Court in Criminal Revision No. 2123 of 2008. The aforesaid revision was allowed vide order dated 20.10.2008 and the matter was remitted back for fresh consideration. Thereafter, evidence of the mother of the deceased was also recorded and at that stage, the prosecution filed fresh application under Section 319 Cr.P.C. It is the order passed in the aforesaid application on 21.2.2009 that the petitioner was summoned to face trial. The aforesaid order is impugned in the present petition. Learned counsel for the petitioner submitted that there was no material before the court on the basis of which an opinion could be formed that there is likelihood of conviction of the petitioner on the basis of the material Criminal Revision No. 817 of 2009 [2] available on record. The satisfaction so recorded by the learned court below is without any basis. The status of the case remains the same as was there when the earlier order passed by the learned court below summoning the petitioner was challenged before this Court. At that stage, while setting aside the order, the matter was remitted back. Referring to the material on record, it was submitted that in the FIR, there was only a passing reference that accused-Udaivir was having relations with the petitioner. The fact remains that there was litigation pending between the petitioner and his deceased wife. Both were living separate since long. Divorce petition filed by the deceased against the petitioner was already pending and it is only for that reason that the petitioner was sought to be implicated. In terms of Section 319 Cr.P.C., it is only the material which had come before the court which could be considered for summoning an additional accused. In the present case, when the first order was passed there was only the statement of the complainant, brother of the deceased, where he stated that accused-Udaivir was in friendly terms with the petitioner and that is why he had killed his sister on the asking of the petitioner. In her statement, mother of the deceased, repeated the same thing. In her cross-examination, she stated that Udaivir had murdered her daughter at the behest of the petitioner. The submission is that the fact that during investigation the petitioner was found to be innocent cannot be diluted merely by oral statements of the complainant, brother of the deceased, and also the mother of the deceased, where all what they stated was that the murder was committed by Udaivir at the behest of the petitioner. He further submitted that there is not even the statement of main accused- Udaivir alleging that he had committed the murder at the instance of the petitioner. Relying upon the judgment of Hon'ble the Supreme Court in Sarabjit Singh and another v. State of Punjab and another, 2009 (3) RCR (Criminal) 388, it was submitted that summoning of a person as additional accused under Section 319 Cr. P.C. is totally discretionary and extra ordinary jurisdiction, which is to be exercised sparingly and if compelling reasons exist for taking cognizance against a person against whom challan has not been presented. It can only be exercised on the basis of fresh evidence brought before the court and not on the basis of material collected during investigation. On the other hand, learned counsel for the State submitted that there are specific averments against the petitioner in the FIR and also in the statements of the complainant and his mother. The material is sufficient to record satisfaction that there is likelihood of conviction of the petitioner. It has come on record that the accused was friendly with the petitioner and the murder has been committed by him at the behest of the petitioner. There were strained relations between the Criminal Revision No. 817 of 2009 [3] petitioner and the deceased, being his wife, and there was every reason for him to have conspired to eliminate her. Heard learned counsel for the parties and perused the material on record. Hon'ble the Supreme Court in Sarabjit Singh's case (supra) opined that power under Section 319 Cr.P.C. can be exercised only on the basis of fresh evidence brought before the court and not on the basis of material, which was collected during investigation. It is an extra ordinary power, which is required to be exercised sparingly and only if compelling reasons exist for taking cognizance against a person, who has not been challaned. Before an additional accused can be summoned for standing trial, the nature of evidence before the court should be such, which would make out a ground for exercise of extra ordinary power. Order under Section 319 Cr.P.C. should not be passed merely 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 provision. Mere ipse dixit would not serve the purpose. The courts are required to apply stringent test, namely, as to whether the evidence on record is such which would reasonably lead to conviction of the accused sought to be summoned. If the facts of the present case are examined in the light of the law laid down by Hon'ble the Supreme Court, what transpires is that there was passing reference of the name of the petitioner in the FIR, which was reiterated by the complainant in the court. In addition to this, mother of the deceased also stated in the same line, but there was no independent evidence to corroborate the same. Rather, there was apparent contradiction in both the statements, namely, the complainant, brother of the deceased, stated in his cross-examination that he knew Udaivir since his childhood who used to come to their house, whereas in her statement, Rekha, mother of the deceased, stated that accused Udaivir had come to their house for the first time. Considering the aforesaid facts and also the enunciation of law on the subject, I do not find that a satisfaction can be recorded in the facts and circumstances of the present case regarding likelihood of conviction of the petitioner at this stage, the material on record being not sufficient for the same. In view of my above discussion, the impugned order dated 21.2.2009 passed by the learned court below summoning the petitioner to face trial as an additional accused is set aside. However, the same will not debar the prosecution from filing a fresh application for summoning any accused, in case subsequently sufficient material comes on record, which could justify filing of such application. Criminal Revision No. 817 of 2009 [4] The revision petition stands disposed of in above terms. (Rajesh Bindal) Judge August 06, 2009 mk