IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) Crl. Revision Petition No. 860 of 2009 Chameli Devi. ....... Petitioner through Shri. N.S.Shekhawat, Advocate. Versus State of Haryana. ....... Respondent through Mrs. Sushma Chopra, Additional Advocate General. (2) Crl. Revision Petition No. 1786 of 2009 (O&M) Shri Niwas ....... Petitioner through Shri. J.P.Sharma, Advocate. Versus State of Haryana and another. ....... Respondent no.1 through Mrs. Sushma Chopra, Additional Advocate General. Respondent no.2 through Shri N.S.Sekhawat, Advocate. Date of Decision: 20.8.2009 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Crl.Revision No.860 of 2009 -2- .... Mahesh Grover,J. This common order will dispose of the above mentioned two revision petitions which have been directed against order dated 13.3.2009 of the Additional Sessions Judge, Narnaul (hereinafter described as `the trial Court'). In Crl. Revision Petition No.860 of 2009, petitioner-Chameli Devi, who has been summoned to face trial under Sections 406, 498-A, 304-B, 302 of the I.P.C. pursuant to the provisions of Section 319 of the Cr.P.C., has pleaded that the impugned order is based on unsustainable reasons, whereas in Crl. Revision Petition No.1786 of 2009, complainant- Shri Niwas has stated that as many as seven persons were sought to be summoned pursuant to the provisions of Section 319 of the Cr.P.C., but only Chameli Devi has been summoned and, therefore, the impugned order is erroneous and all the seven persons should have been summoned to stand trial. Since the revision petition of complainant-Shri Niwas is barred by limitation, therefore, Crl. Misc. No.34492 of 2009 has been filed for condonation of 34 days' delay. For the reasons stated therein, the Crl. Misc. is accepted and the delay in the filing of the revision petition is condoned. Notice of the revision petition is issued to the respondents, which is accepted by the learned Additional Advocate General, Haryana on behalf of the State and by Shri N.S.Sekhawat, Advocate for respondent no.2. Learned counsel for the petitioners, in both the petitioners, contended for different reasons that the impugned order is non-speaking. I have thoughtfully considered their contention. Crl.Revision No.860 of 2009 -3- .... A perusal of the impugned order reveals that while exercising its jurisdiction to summon petitioner-Chameli Devi under Section 319 of the Cr.P.C., the trial Court has observed in its last paragraph as under:- “In view of the rulings, section 319 Cr.P.C. gives power to proceed against the persons involved in commission of offence, who have been named by the prosecution witness though they have not been challaned. It is to be seen whether there is sufficient evidence or there is general tendency to falsely implicate the other family members of the accused in such type of cases when those accused are residing separately. In this case PW2 Shri Niwas has named as many as 7 other persons excluding accused Shish Ram naturally this only shows that he wants to implicate the other family members of the accused despite the fact that they are residing separately. Hence, application is allowed to the extent that accused Chameli be summoned for the commission of offences under sections 406/498A/304B/302 of IPC whereas application qua remaining accused is dismissed. Case is adjourned to 8.4.2009 for summoning of accused Chameli through warrant of arrest.” In the considered opinion of this Court, the impugned order suffers from grave and material insufficiency. No reasons have been given from where it can be said that petitioner-Chameli Devi was required to be summoned for the reason that there was sufficient evidence on record against her on the basis of which an opinion could be formulated that such Crl.Revision No.860 of 2009 -4- .... material was sufficient to warrant her conviction, if made to face trial. Similarly, there is no cogent reasons qua the persons, who have been left out. In Brindaban Das and others Versus State of West Bengal, 2009(1) R.C.R. (Criminal) 672 (S.C.), their Lordships of the Supreme Court, while dealing with a matter pertaining to the provisions of Section 319 of the Cr.P.C., held as under:- “There must be substantive evidence against a person in order to summon him for trial, although he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction.” In Ram Pal Singh & Ors. Versus State of U.P. & Anr., 2009(2) R.C.R.(Criminal) 131 (S.C.), the Apex Court observe din paragraph 16 of the judgment as under:- “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 also clear that the discretion is left to the Court to take a decision on the matter.” In Sarabjit Singh & Anr. Versus State of Punjab & Anr., 2009 (3) R.C.R. (Criminal) 388, their Lordships of the Supreme Court elaborately Crl.Revision No.860 of 2009 -5- .... interpreted the provisions of Section 319 of the Cr.P.C. Paragraphs 16 and 17 of the judgment read as under:- “16. We have noticed hereinbefore that Mohd. Shafi (supra) has been explained in Lal Suraj (supra) holding that a power under Section 319 of the Code can be exercised only on the basis of fresh evidence bought before it and not on the basis of the materials which had been collected during investigation particularly when a final form was submitted and the same had been accepted by the Magistrate concerned. There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in Municipal Corporation of Delhi (supra) is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. 17. The provisions of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. Crl.Revision No.860 of 2009 -6- .... We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr., 2007(2) RCR (Criminal) 1014 : 2007(3) RAJ 69: [JT 2007(6) SC 460], this Court opined: “.....Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court.......” 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 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.” A learned Single Judge of this Court in Mann Singh & others Versus State of Punjab & another, 2009(2) R.C.R. (Criminal) 289 (P&H), while considering the provisions of Section 319 Cr.P.C., observed in Crl.Revision No.860 of 2009 -7- .... paragraphs 15 and 16 of the judgment as under:- “15. If the evidence given by a witness is to be ignored only on the ground that same is a repetition of what was stated by the witness and considered by the investigating agency to say that person is not to be added as an accused, it would amount to giving primacy to the police which cannot be done in view of Y.Saraba Reddy's case (supra). The Hon'ble Supreme Court has clearly held that the conclusion that the IO's satisfaction should be given primacy is unsustainable. 16. Each case is to be decided on the facts of its own. An authority has to be understood in the context of facts based on which the observations therein are made.” In view of the law laid down by the Supreme Court and the fact that the impugned order is not clear regarding the material which has been appreciated by the trial Court while exercising power under Section 319 of the Cr.P.C. and also for the reason that it is totally contrary to the dictum quoted above, these petitions are accepted and the order under challenge is set aside and the matter is remitted back to the trial Court for reconsideration of the matter afresh. The needful be done after affording opportunity of hearing to both the parties as early as possible, preferably within three months from the date of receipt of a copy of this order. August 20,2009 ( Mahesh Grover ) “SCM” Judge