Criminal Revision No. 2099 of 2007 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2099 of 2007 Date of decision: February 15, 2008 Mohan Singh and others .....Petitioners Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. A.P.S. Deol, Senior Advocate with Mr. Davinder Bir Singh, Advocate for the petitioners. Mr.J.S.Bhuller, Assistant Advocate General, Punjab RAJESH BINDAL J. 1. The challenge in the present petition is to the order dated October 18, 2007 passed by learned Sessions Judge, Bathinda in application filed by the prosecution under Section 319 of the Code of Criminal Procedure for summoning of the petitioners. 2. Learned counsel for the petitioners submitted that the FIR No. 117 dated November 9, 2006 out of which present proceedings arises was registered under Sections 366, 376 IPC at Police Station, Dialpura on a complaint filed by Surjit Singh on November 9, 2006 at 6.05 PM with the allegations that her daughter Karamjit Kaur aged about 20 years was abducted by Jaswinder Singh son of Mohan Singh resident of Bhagta Bhaika while she had gone out of her house to throw the garbage after feeding the cattle on the roori. She was abducted in white Zen Car bearing No.DL-2CN-4040 on November 5, 2006 at about 3.00 P.M. and whereabouts of her are unknown. After the registration of the FIR, Karamjit Kaur was recovered and on November 10, 2006 her statement was recorded by the Police wherein she stated that when she went out of the house to throw garbage, in the meantime, Jaswinder Singh son of Mohan Singh came in his Zen car out side her house and made her to sit forcibly in the car. Jaswinder Singh took her to Sarai of Amritsar Gurudwara Sahib Criminal Revision No. 2099 of 2007 -2- *** and under threat kept on committing rape without her consent. 3. Surjit Singh complainant filed a petition in this Court bearing Criminal Misc. No. 5067-M of 2007 seeking transfer of investigation of the case to some other officer on the plea that against Superintendent of Police (D), Bathinda, he had filed a writ petition in the year 1995 and accordingly he apprehend that matter will not be investigated properly. However, finding no merit in the petition, the same was dismissed vide order dated January 25, 2007. 4. After the challan was put in before the Court, statement of Karamjit Kaur was recorded wherein in addition to the earlier statement made before the Police on November 10, 2006, she stated that on November 6, 2006, Jaswinder Singh locked her in room and went away for quite some time. When Jaswinder Singh returned back he was accompanied by his father Mohan Singh, uncle Ram Singh s/o Pritam Singh r/o village Aklia Jalal and Gurjant Singh father in law of his sister and Mahasta Singh nephew of brother in law of accused Jaswinder Singh and uncle of brother in law of accused, Chamkaur Singh. Then they all took her to village Tharaj wala Distt. Mukatsar. There they threatened her and took away her ear rings. There mother of accused Jaswinder Singh namely Paramjit Kaur and one Jagmohan Singh member panchayat of village Tharajwala were present. They also threatened her and told her that she should describe Surjit Singh and Harbans Kaur were not her parents and she should describe them as her uncle and aunt. 5. She further stated that on November 7, 2006, she was brought to Police Station, Dialpur Bhaika by car. Police of Police post, Bhagta also came there. Keeping this statement made by Karamjit Kaur in view, learned Sessions Judge, Bhatinda vide impugned order directed summoning of the petitioners to face trial inspite of the fact that they were not even mentioned in column no.2 as their names were not even mentioned in the statement made by Karamjit Kaur complainant initially on the basis of which FIR was recorded. 6. Learned counsel for the petitioners relied upon Palanisamy Gounder and another Vs. State represented by Inspector of Police ( 2005) 12 Supreme Court Cases 327 and Lok Ram Vs. Nihal Singh 2006 Criminal Revision No. 2099 of 2007 -3- *** (2) R.C.R. (Criminal) 707. 7. On the other hand, controverting the contentions raised by learned counsel for the petitioners, learned counsel for respondents submitted that scope and ambit of the powers vested with the Court under Section 319 of the Code is quite wide as the language suggest that the same can be exercised at any stage of the proceedings. To avoid unnecessarily delay, it is appropriate that such a power is exercised at initial stage of the proceedings. Once specific allegations were made by Karamjit Kaur against the petitioners, the learned Court below has rightly exercised the powers in the interest of justice. The only requirement for summoning an accused under Section 319 of the Code is that it should appear to the Court that offence had been committed by the persons sought to be summoned. Still further it is submitted that the petitioners can very well raise all the pleas at the time of framing of charge and in case sufficient material was not found at that stage, they will be discharged. Further due process of law initiated against them should not be scuttled at this initial stage. 8. This Court in Criminal Misc. No. 11407-M of 2007 ( Ashok Kumar Vs. State of Haryana ) decided by a separate detailed order passed today, while considering number of judgments of Hon'ble the Supreme Court and this Court in Rukhsana Khatoon (Smt.) Vs. Sakhawat Hussain and others (2002) 10 Supreme Court Cases 661, Krishnappa v. State of Karnataka, (2004) 7 SCC 792, Kailash Dwivedi Vs. State of M.P. and another (2005) 11 Supreme Court Cases 182, Palanisamy Gounder and another Vs. State reprsented by Inspector of Police (2005) 12 Supreme Court Cases 327, Kavuluri Vivekananda Reddy and another Vs. State of A.P. And another (2005) 12 Supreme Court Cases 432, Lok Ram Vs. Nihal Singh 2006 (2) RCR (Criminal) 707, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 Supreme Court Cases 296, Mohd. Shafi Vs. Mohd. Rafiq and another 2007 (2) RCR (Criminal) 762, Rajendra Singh Vs. State of U.P. and Anr 2007 (3) R.C.R. (Criminal) 1021, Municipal Corpn. of Delhi v. Ram Kishan Rohtagi, 1983 (1) RCR (Criminal) 73, Joginder Singh V. State of Punjab (1979) 1 SCC 345, Kishan Singh V. State of Bihar 1993 (1) Criminal Revision No. 2099 of 2007 -4- *** RCR (Criminal) 647, Guriya @ Tabassum Tauquir and others Vs. State of Bihar and another 2007 (4) Recent Criminal Cases 518, Y. Saraba Reddy Vs. Puthur Rami Reddy and another (2007) 4 Supreme Court cases 773, Smt. Rani Vs. State of Haryana 2006 (1) R.C.R. (Criminal) 985, Surinder Kumar Changli Vs. State of Punjab 2006 (2) R.C.R. (Criminal) 359, Surjit Kaur and others Vs. State of Punjab and another 2006 (1) RCR (Criminal) 565, Rajbir Singh Vs. State of Haryana and others 2006 (3) RCR (Criminal) 195, Manoj Kumar Vs. Prabhu Ram 2003 (4) RCR (Criminal) 887, Isham Singh and others Vs. State of Haryana 2004 (2) RCR (Criminal) 279, Bharat Bhushan alias Sonu Vs. State of Haryana and another 2005 (1) RCR (Criminal) 976, Surinder Kumar Vs. State of Punjab Changli 2006 (2) RCR (Criminal) 359, Smt. Rajjo and another Vs. State of Haryana and another 2006 (3) RCR (Criminal) 635, Om Parkash and others Vs. State of Haryana 2007 (1) RCR (Criminal) 632, Ram Karan alias Roda and another Vs. State of Haryana 2007 (1) RCR (Criminal) 977, Ganesha Vs. State of Haryana and another 2007 (2) RCR (Criminal) 633 and Hukam Chand and anotehr Vs. State of Haryana 2007 (3) RCR 141 has summed up the broad principles, as to under what circumstances power under Section 319 of the Code should be exercised, which are in the following terms:- “i) Power to summon an accused is discretionary and extra-ordinary power, which should be exercised sparingly and only if compelling reasons exist at any stage of case. ii) The order passed under Section 319 of the Code of Criminal Procedure summoning an additional accused should not be a mechanical exercise. Court should record reasonable satisfaction and reasons in support of the order. iii) Power cannot be exercised to conduct a fishing enquiry. iv) There should be reasonable prospects of the case Criminal Revision No. 2099 of 2007 -5- *** against the newly added accused ending in their conviction. v) Step to summon an accused can be taken only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge-sheet or the case-diary as such material does not constitute evidence. vi) Power can be exercised suo-moto or on an application by some one including accused already before the Court. vii) An accused is not entitled to be heard before the Court exercises power under Section 319 of the Code of Criminal Procedure. viii) Satisfaction of the Court is paramount before summoning an accused, which can be arrived at inter- alia upon completion of cross-examination of the witness. ix) Mere statement of the complainant without there being any other evidence on record may not be sufficient to summon the accused. Each case on this aspect needs cautious examination on facts before passing order of summoning of additional accused. x) Each case has to be considered on its own facts as there may be different stages of the case where the Court can reach to a conclusion that a prima facie case is made out against the accused sought to be summoned.” 9. If the facts of the present case are examined on the principles of law laid down on the issue, it is evident that at the time of recording her statement on November 10, 2006, the complainant stated that Jaswinder Singh son of Mohan Singh came in his Zen Car No. DL-2CN-4040 and made her to sit forcibly in car. He took her to Sarai of Amritsar Gurudwara and under threat kept on committing rape. However, when her statement was recorded in Court, she made substantial improvement therein stating Criminal Revision No. 2099 of 2007 -6- *** that when on November 6, 2006 Jaswinder Singh locked her in a room and went away. While returning back he was accompanied by his father Mohan Singh, uncle Ram Singh and Gurjant Singh, father-in-law of his sister and Mahasta Singh nephew of brother-in-law of accused Jaswinder Singh and uncle of brother-in-law of accused Chamkaur Singh. They all took the complainant to village Tharaj Wala. Once there was considerable difference in the stand of the complainant as recorded in the FIR and as recorded in the Court, in my opinion, the learned Court below has not properly appreciated the provisions of law and the powers vested therein for summoning the persons as additional accused. Once such a situation arose, it is always safe to have other corroborating evidence before exercise of powers under Section 319 of the Code. In the present case another fact which is important is that the petitioners were not even named in the FIR. When the complainant herself lodged the FIR with the police, the petitioners were nowhere in the picture. Why occasion arose for the complainant to sign blank papers is not born out on the record. There is nothing on record to substantiate her plea that inspite of her telling the police about the names of the petitioners, no action was taken against them. In such a situation, complainant could have approached the higher authorities but nothing was done. The material on record with the Court to summon the present petitioners was neither sufficient nor reasonable satisfaction had been recorded in terms of law. 10. Accordingly, for the reasons stated above, the impugned order dated October 18, 2007 passed by learned Sessions Judge, Bathinda is set aside. However, the same shall not debar the prosecution from filing application under Section 319 of the Code at any subsequent stage of the proceedings in case any further material comes on record justifying the summoning of the additional accused. 11. The revision petition is disposed of in the above terms. February 15 , 2008 (Rajesh Bindal) Pka Judge Criminal Revision No. 2099 of 2007 -7- ***