Crl. Revision No. 633 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 13202 of 2009 and Crl. Revision No. 633 of 2009 Date of decision: March 17, 2009 Shish Pal ….. Petitioner Versus State of Haryana ….. Respondent Present: Mr. Sudhir Nehra, Advocate for the petitioner. *** S.S. SARON, J. Crl. Misc. No. 13202 of 2009 The Crl. Misc. application which is supported by an affidavit of the petitioner has been filed seeking condonation of 75 days’ delay in filing the revision petition. It is submitted that the petitioner is an illiterate person and he had consulted advocates in the District Court at Fatehabad regarding his remedy after his application for seeking summoning of the accused (respondents No.2 and 3) had been dismissed. It is in January, 2009 that the petitioner came to know that he had a remedy of filing a revision petition in this Court. The petitioner then obtained a certified copy of the impugned order dated 26.9.2008 and filed the present petition. Keeping in view of the above facts, there are sufficient grounds to condone the delay in filing the revision petition. Crl. Revision No. 633 of 2009 2 Accordingly, the Crl. Misc. application is allowed and the delay of 75 days in filing the revision petition is condoned. Crl. Revision No. 633 of 2009 The Crl. Revision petition has been filed against the order dated 26.9.2008 passed by the learned Additional Chief Judicial Magistrate, Fatehabad, whereby the application of the State for summoning respondents No.2 and 3 as additional accused in terms of Section 319 of the Code of Criminal Procedure (“CrPC” – for short) has been dismissed. The FIR dated 19.9.2004 (Annexure P1) in the case has been registered on the statement of complainant Shish Pal Singh (petitioner). It has been alleged by the petitioner that his wife Kanta Devi (respondent No.3) was out of his control and she was on visiting terms to the house of one Balwant Singh. The petitioner had restrained her from going there. However, she threatened that she would get the petitioner beaten up from said Balwant Singh. About 10-12 days earlier to the lodging of the FIR i.e. earlier to 19.9.2004, the petitioner had gone to his sister. He returned to his house on 16.9.2004. On 17.9.2004 at about 10.00 a.m. the petitioner was present in his house. His elder brother namely Dharamnath called the petitioner at his dera where he went. There Krishna (respondent No.2) wife of Balwant Singh was sitting with the brother of the petitioner. When the petitioner reached there, Krishna (respondent No.2) stated that the petitioner had made obnoxious phone calls to their girls. The petitioner, however, stated that he had not made any phone call. At this Krishna (respondent No.2) stated that she had heard the same and she became infuriated and started beating the petitioner. At that time, Baljit Singh, the husband’s younger brother (devar) of Krishna (respondent No.2) also came there and stated that they would teach the petitioner a lesson for making phone calls. Thereafter, the petitioner was given a beating by Krishna and Baljit Singh. The hands of the petitioner it is alleged were tied and he was beaten with lathies. On the basis of the allegations, FIR has been registered. Crl. Revision No. 633 of 2009 3 After completion of the investigations, the police filed its final report (challan) dated 4.10.2004 (Annexure P6). However, respondents No.2 and 3 were not charge-sheeted (challaned) by the Police. Thereafter, the petitioner filed an application (Annexure P7) before the trial Court in terms of Section 319 CrPC for summoning respondents No.2 and 3. Reliance was placed on his statement dated 2.7.2008 (Annexure P8) that was recorded during the trial of the case. In the said statement, the averments as made in the FIR were reiterated. It is stated by the petitioner as PW1 that when he reached the house of his brother namely Dharamnath at his dera, there Krishna (respondent No.2) wife of Balwant Singh was sitting there. She stated that the petitioner had made an obnoxious phone call to their daughter. The petitioner, however, told her that he had not made any phone call. At this stage, the accused became infuriated and started beating the petitioner. The petitioner tried to rescue himself. Thereafter, Baljit Singh, the devar of Krishna also came there and started beating him. In view of the statement dated 2.7.2008 (Annexure P8), an application dated 2.7.2008 (Annexure P7) was filed before the learned Additional Chief Judicial Magistrate, Fatehabad for summoning respondents No.2 and 3 as additional accused. Thereafter, the petitioner was cross-examined and his cross-examination recorded on 14.8.2008 (Annexure P8) is on record. The application (Annexure P7) has been dismissed by the impugned order dated 26.9.2008. It was observed by the learned Additional Chief Judicial Magistrate, Fatehabad in her order that Kanta Devi (respondent No.3) accused sought to be summoned, is admittedly the wife of the complainant (petitioner) and as per the allegations as levelled in his report, the complainant Shish Pal Singh (petitioner) had alleged that his wife did not listen to his dictates and that she was under the influence of Balwant Singh. Krishna Devi (respondent No.2) is the wife of Balwant Singh and she was also sought to be summoned. It was observed that both the women namely Kanta Devi (respondent No.3) and Krishna Devi (respondent No.2) had not been attributed any specific injury on the Crl. Revision No. 633 of 2009 4 person of the complainant. During investigation, the Police did not find any incriminating material against them and found them innocent, as a result of which both were not chargesheeted (challaned) by the police. Accordingly, it was found that there was no ground to summon them (i.e. respondents No.2 and 3) as accused. The application (Annexure P1) was accordingly dismissed. Learned counsel for the petitioner has contended that the statements (Annexures P2 and P3) of Shish Pal (petitioner) and of his brother Dharam Nath recorded under Section 161 CrPC as also the statement (Annexure P8) of Shish Pal (petitioner) recorded during the trial of the case clearly show the involvement of respondents No.2 and 3 in the incident that occurred on 17.9.2004 and therefore, the learned Additional Chief Judicial Magistrate, Fatehabad has gravely erred in not summoning them as additional accused. After giving my thoughtful consideration to the matter and perusing the record, I find no merit in the contentions of the learned counsel for the petitioner. A perusal of the statements referred to by the learned counsel for the petitioner including the statement (Annexure P8) of the petitioner as deposed before the learned trial Magistrate would show that no specific role has been attributed to Kanta Devi (respondent No.3). Insofar as Krishna Devi (respondent No.2) is concerned, it has been alleged that when the petitioner stated that he had not made an obnoxious call to her daughter then she became infuriated and started beating him. When he tried to rescue himself, her (Krishna Devi’s) husband’s younger brother (devar) namely Baljit Singh also came and started beating him and then others also joined in beating him. Therefore, only general and vague allegations have been made that accused became infuriated and started beating the petitioner. It may be also noticed that in the FIR (Annexure P1), the petitioner does not name Kanta Devi (respondent No.3) as having beaten the petitioner. A reference that has been made in the FIR (Annexure P1) is only to Krishna Devi (respondent No.2). However, in his statement (Annexure P8) recorded during the Crl. Revision No. 633 of 2009 5 trial, the petitioner has stated that the accused became infuriated and started beating him. Therefore, the possibility of inflating the version cannot be ruled out. Besides, a perusal of the cross-examination (Annexure P8) of Shish Pal (petitioner) would show that the petitioner had also filed a complaint against respondents No.2 and 3 which was dismissed and against the same, a revision petition is pending. A person who is not included as an accused in the charge sheet filed by the police can in terms of Section 319 CrPC be summoned as an additional accused by a Magistrate after cognizance of the offence is taken. However, an order to summon an additional accused is to be passed if there is some material found against him. The evidence and material on record should indicate a reasonable prospect that the person sought to be summoned is prima facie guilty of the offence attributed to him and can be arraigned as an accused. Mere suspicion or involvement of a suspect is not enough to summon an accused. In the present case, the material and evidence on record based on mere bald allegations of the petitioner is not sufficient enough to summon respondents No.2 and 3. In fact the complainant had also filed a private complaint against respondents No.2 and 3, which has been dismissed although a revision against the same is pending. In the circumstances, the order passed by the learned Additional Chief Judicial Magistrate, Fatehabad in not summoning respondents No.2 and 3 as additional accused in terms of Section 319 CrPC cannot be said to be with any fault. Accordingly, there is no merit in this criminal revision petition and the same is dismissed. (S.S. SARON) March 17, 2009 JUDGE amit