Crl.Misc.No.M- 14039 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Misc.No.M- 14039 of 2009 (O&M) Date of decision: 9.7.2010 Dilbag Singh and others ......Petitioners Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.H.S.Baath, Advocate, for the petitioners. Mr.Amandeep Singh Rai, AAG, Punjab. **** SABINA, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure (Cr.P.C.- for short) for setting aside the order dated 1.4.2009 (Annexure P-8) passed by the Judicial Magistrate, IInd Class, Patti in FIR No.80 dated 15.7.2005 under Sections, 447/ 452/ 506/ 148/ 149 of the Indian Penal Code (IPC- for short) registered in police station Valtoha District Tarn Taran, in which challan has been presented under Sections 447/ 506/34 IPC, wherein the petitioners have been summoned under Section 319 Cr.P.C. to face the trial. Crl.Misc.No.M- 14039 of 2009 (O&M) 2 Learned counsel for the petitioners has submitted that there was no material available before the trial Court while passing the impugned summoning order which required summoning of the petitioners to face the trial as additional accused. The complainant had been told by Atma Ram PW that the petitioners along with their co-accused had broken open the lock and were sitting in the shop. Atma Ram PW, on the other hand, has not been examined before the trial Court so far. Learned State counsel, on the other hand, has opposed this petition. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. In the present case, complainant PW-3, while appearing in the witness box, deposed as under:- “In the morning on 15.7.2006 I was preparing myself go to the shop that Atma Singh and other persons have informed upon coming that upon your shop, accused Tara Singh, Harjit Singh, Rajwinder Singh and Sukhchanin Singh sons of Beera Singh, Darbara Singh son of Dara Singh, Sama Singh son of Kabal Singh, Jassa Singh, son of Kabal Singh, Balbir Singh son of Assa Singh, Nishan Singh son of Baj Singh, Tarsem Singh son of Tara Singh, Bira Singh son of Joginder Singh, Shangara Singh son of Hazara Singh, Milkha Crl.Misc.No.M- 14039 of 2009 (O&M) 3 Singh son of Hazara Singh all Jat, resident of Gharayala has occupied forcibly the shop after breaking its lock and putting out all the material from there, in the material, the machine taking out fat, machine of making cream, TV, five Tanse, one utensil, one iron road and aluminum cane has been stolen. Upon this we started to go to the shop then got scared from the fight. On the application are my signatures and has been subscribed by me, were going to the police station that on the way police met us, on this basis, application was sent for registration of case and has called more force through wireless. Then all the above mentioned accused, among them Tara Singh, Harjit Singh, Hazara Singh and other accused were sitting in the shop after breaking its lock” So far PW Atma Singh has not been examined before the trial Court. A perusal of his statement recorded under Section 161 Cr.P.C. reveals that when he was returning from his fields on 15.7.2005 at about 5.00 a.m., he saw Tara Singh, Harjit Singh and Sukhchain Singh sitting before the dairy shop of complainant Baldev Singh after breaking the lock. He told the entire story to Baldev Singh. He has further deposed that the matter was got compromised between Baldev Singh and Tara Singh. Baldev Singh had checked the material lying in his shop and only Tara Singh, Harjit Singh and Sukhchain Singh were present and now they had left the spot. Other Crl.Misc.No.M- 14039 of 2009 (O&M) 4 persons were only saying that the matter had been compromised and no loss had been caused to the complainant. Section 319 reads as under:- “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 attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. 3) 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. 4) 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 Crl.Misc.No.M- 14039 of 2009 (O&M) 5 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.” In Paramvir @ Happy vs. State of Haryana, 2009 (1) RCR (Criminal) 408, this Court has held as under:- “ The gist of what has been declared by the Hon'ble Supreme Court of India is that the evidence produced by the prosecution must satisfy the Court that the other accused or those who have not been arrayed as accused have committed the offence. It must be made to appear to the court concerned that the person who is not facing trial has committed an offence. The discretion in this behalf must be judicially exercised only after the court records its satisfaction. There must exist a possibility that the accused so summoned, in all likelihood, would be convicted. This discretionary power should be exercised only to achieve criminal justice and the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. It is not the compelling duty of the court to proceed against other persons. For the exercise of discretion under Section 319, Code of Criminal Procedure, all relevant factors need to be kept in view and the order is not required to be made mechanicaly Crl.Misc.No.M- 14039 of 2009 (O&M) 6 merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. The power conferred in Court under Section 319 of Code, should be used very sparingly and only if compelling circumstances exist for taking cognizance against other person against whom action has not been taken.” “Therefore, the power of Section 319 of the Code is an extraordinary power, to be sparingly used under compelling circumstances. It is to be used only when there is sufficient material brought on record to summon the persons not facing trial. Merely on the statement of the complainant who had almost reproduced his FIR version the powers under Section 319 of the Code should not be ordinarily exercised.” “It is the duty of the police authorities to give complete details of reasons in the report under Section 173 of the Code as to why a particular person is not being challened and on the basis of which evidence. Even the Punjab Police Rules provide in para 25.17 (6) that Senior Police officers must supervise the investigation findings. This material can help the court to independently assess the material on record while deatiling with application under Section 319 of the Code. With the rise in cases of Crl.Misc.No.M- 14039 of 2009 (O&M) 7 dowry and dowry deaths etc. as well as group clashes, political rivalries etc. the naming of innocent including women, old, infant, children has become a glaring reality. During the investigations if they are found to be innocent, then the provisions of Section 319 of the Code should not be allowed to be used as tools by unscrupulous complaints to settle their personal scores. The process of law cannot be allowed to be abused. The aim must be to achieve criminal justice. “ The Court is required to consider that one opinion of innocence of the person sought to be added as an accused, is already there in the report under Section 173 of the Code. The opinion has been recorded after investigation by the police in discharge of its statutory functions under Chapter XII of the Code. The opinion of innocence, thus, recorded can only be doubted to achieve criminal justice.” At this stage, there was no material available on record which made out a case against the petitioners to be summoned to face the trial along with their co-accused. Although the Court has the power to summon any person as an additional accused if during trial it transpires that the said person is also liable to be tried with the accused against whom challan has been presented. However, from the statement of PW-3 Baldev Singh, it cannot be said that the Crl.Misc.No.M- 14039 of 2009 (O&M) 8 petitioners were also liable to be summoned to face the trial as additional accused along with the accused already facing the trial. The trial Court has failed to record its satisfaction that there exists a possibility that the accused so summoned are in all likelihood would be convicted. Accordingly, this petition is allowed. The impugned order, whereby the petitioners were ordered to be summoned to face the trial as an additional accused, is set aside. (SABINA) JUDGE July 09, 2010 anita