1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 33471-M of 2008 Date of Decision: 6.8.2009 *** Rajesh Mehta .. Petitioner Vs. The Secretary, Punjab & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. M.S. Sachdev, Advocate for the petitioner. Mr. B.S. Sra, Addl. A.G. Punjab Mr. Malkiat Singh, Advocate for respondent No.4. *** ARVIND KUMAR, J. The petitioner is seeking directions to the officials respondents to take active steps in searching of Sunil Arora, with whom his sister has been married and gone missing since 15.11.2008. A DDR No. 9 dated 16.11.2008 is reportedly entered at Police Station Division No.3, Jalandhar regarding missing of said Sunil Arora. Like-wise respondent No.4, the father of Sunil Arora has also got registered an FIR No.7 dated 14.1.2009 at police Station Division No.3, Jallandhar under Section 364 IPC regarding sudden and mysterious disappearance of his son, suspecting the hand of petitioner and other family members of in-laws of his son. In the reply filed by respondent No.4 he has also sought investigation of the aforesaid cases by some independent agency. In the reply filed on behalf of the State though the averments of the petition that the investigation in the matter of missing of Sunil Arora is not going on properly, have been denied, but learned State counsel has pointed out that under the orders of DIG, a Special Investigating Team has been formed to probe into the missing of Sunil Arora. That being so, the 2 instant petition is disposed of with a direction to respondent No.1 to ensure expeditious conclusion of investigation by the SIT, constituted in the matter. The petitioner shall be at liberty to approach again, in case he is not satisfied with the ggrieved with the order dated 26.5.2009 passed by the learned trial court by virtue of which his application under Section 319 Cr.P.C. for summoning and trial of additional accused namely Sandeep son of Subhash Chand, Sukhbir son of Darya and Surender son of Lakhi Ram (respondents No.2 to 4) along with other accused has been dismissed. The petitioner is the author of FIR No. 74 dated 2.3.2009, under Sections 363, 366, 376 IPC, registered at Police Station Sadar Dadri. In the aforesaid case the investigating agency arrested and challaned one Sandeep son of Bhoop Singh while respondents No.2 to 4 were not challaned. The complainant appeared in the witness box as PW.1 and thereafter the prosecution filed an application under Section 319 Cr.P.C. seeking summoning of respondents No.2 to 4 as an additional accused, which, as noticed above, has been dismissed by the learned trial Court. marriage of sister of petitioner namely Smt. Sunita was solemnized with I have heard learned counsel for the petitioner and have also gone through the paper-book file carefully. The provisions of Section 319 of the Code confers an extra ordinary power and should not be easily resorted to. It is well settled that sweep of Section 319 Cr.P.C. is limited as it is an enabling provision which can be invoked only if there is convincing evidence disclosing the complicity of the person other than the person (s) already arraigned as accused. A perusal of statement of PW.1 reveals that he is standing on the legs of some other person, who allegedly told him that his daughter was taken away by respondents No.2 to 4, to show that they were also involved in the commission of offence. Merely be mentioning the name of a person as an accused, criminal liability cannot be fastened upon the same. It is apt to mention here that in the impugned order there is a reference of statement of prosecutrix recorded under Section 164 Cr.P.C. wherein she stated that she on her own went away with Sandeep son of Bhoop Singh to Gujrat and she had gone to the extent of saying that she wants to live with Sandeep son of 3 Bhooip Singh. Although the prosecutrix has still to enter the witness box, but merely on the basis of hearysay evidence of PW.1, it cannot be said that the private respondents were also involved in the offence, for which they are to be tried along with the accused facing trial. There has to be some other material on record which may prompt the Court to believe that the person so accused has complicity in the offence and her/his conviction is likely to result in the eventuality of facing the trial, which is missing in this case. The Hon'ble Supreme Court in the case of Michael Machado v. Central Bureau of Investigation, 2000(2) RCR (Criminal) 75 (SC) has observed as under:- “11. The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. 12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the 4 trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons.” In the above facts, no fault could be found with the approach of the learned trial court while dismissing the application of the complainant under Section 319 Cr.P.C. The revision petition being without any merit is dismissed in limine. (ARVIND KUMAR) JUDGE August 6,2009 Jiten