72 IN THE HIGH COURT OF PUNJAB AND HARYANA 1 AT CHANDIGARH Crl Revision Petition Nol53 of 2009 OceMl DateofDecision 29009 Sandeep PetitionerthroughShri SSDinarpur Advocate 1 Versus Stateof Haryanaand another 0 C neee nol through AllrsllleenaMadan t5 AddAdvocate General Haryana I no2 through ShriVaneet Soni Advocate Z CORAM HONBLE MRJUSTICE MAHESH GROVER I C45 1 Whether Reporters of seethe Y 7 2 To be referredto theReporters or not2 Z 3 Whether thejudgment shouldbe reported in theDigest2 Mahesh GroverJe This revision petitionis directedagainstorder dated 16102008 passedbythe Additional SessionsJudgeJagadhrilereinafter describedas the trial Court9vide which the petitioneralongwith one Teku has been ordered to be summonedpursuantto the provisions of Section 319 of the Code ofCriminal Procedure1973 6forshort the CrPC to face trial in a case vide FlRlllo8 dated 253007 under Sections 147 149 323427341452435436307365 oftheIPCand Sections 34 of the DPAct at Police Station Sadar YamunaNagar Uma 2013.03.19 12: 15 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 73 CrRevision PetitionNo53 of 2009 lJ e Il Learned counsel for the contendedthat there was no material before the trial Court on the basisof which the petitioner could have been summoned pursuantto the provisions of Section 319 of the CrPC He pointed to the fact that thereasoningof the trial Coun qua two 1 C differently situatedpersons is not similar Referring to the FlR and the 0 impugned order leamed counsel for the petitionerarguedthat another C I personbythe nameof Naresh was not summonedbythe trial Court on the C5 groundthat his fathers name was not mentioned in the statement of PW5 I BaljitSinghas well as 111the FlR whereasthe petitioner whosefathers Z namewas also not mentioned has beensummoned He thus submiuedthat great has been caused to the petitionerHe submitted that the statementof PW5 has beentaken into considerationeven thoughit was not 08 subjected to crossexaminatlon To supporthis contentionslsubmission he 7 placedreliance on ajudgment ofthe Supreme Court in Mhod Shafi Versus Z Mohd Rafiq and another 200721RCR 6Criminall762 SCI and a Of this Court in RupinderKaur Versus Stateof Puniab 2008 RCR 235 8H9 On the other hand learnedcounsel for the that the petitioners role was clearlydelineated before the trial Court and the resortingto the procedureunder Section 319 of the CrPC for his cannot be termed to be erroneous so as to warrant any interferencein the impugned order I have thoughtfully considered the rival contentionsand have gonethrough theimpugned order Uma 2013.03.19 12: 15 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 74 CrlRevision PetitionN0153 of 2009 Ll 8a r The of law which are to be observed while exercising powers under Section319 ofthe CrC more or less havebeen bynow In Brindaban Das and others Versus State of West Bengal m RR Criminal9672 SCI their Lordships of the Supreme 0 Court while dealingwith a matter pertaining to the provisions of Section 3 319ofthe Cr heldasunder C5 There must be substantivevidenceagainst a person in order to summon him for trial althoughhe is not named in the Z or he has been from the case which would warrant his thereafterwith a goodchanceof I his conviction 59 a5 In Ram Pal Sinh ce Ors Versus Stateof UP 8 Anr 2009 7 021RCRoCriminal91316SC theApexCourt observe din 16 Z as under ll 16 All that is requiredby the Court for invokingits powers under Section 319 CrPC is to be satisfied that from the evidence adduced before it a person againstwhom no charge had been framed but whose appearsto 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 matte In a recent reported as SarabiitSingh8 Anr Versus Stateof Puniab8 Anr RR Crimina0388 the Supreme Coun Uma 2013.03.19 12: 15 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 75 CrRevision PetitionNol53 of 2009 1 4 againconsidered various on the subjectand observed 111 16and 17of the as under 16 We havenoticed hereinbeforethat Mohd Sha has been explained in Lal Surajsupralholdingthat a power under Section 319 ofthe Code can be exercisedonlyon the basis of 0 fresh evidence boughtbefore it and not on the basis of the C I materials which had been collected during C5 particularly when a final form was submittedand the same had been by the concemed There is no Z gainsaying that the power under Section 319 ofthe Code isan r power which in termsof the decision of this I Court in Municipal of Delhi is required to 08 be exercised sparinglyand if reasons exist for 3 takingcognizance against whom action has not beentaken Z 17 The provisionsof Section 319 of the Code on a plain readingprovides that such an case has beenmade out must appearto the court Has the criterionlaid down bythis Court in Municipal of Delhi lpra9been satisfied 1S the question2 beforean additional accused can be summoned for standingtrial the nature of the evidence should be such which would make out grounds for exerciseof power The materials broughtbefore the court mustalso be such which would satis the court that it is one of thosecases whereitsjurisdiction should be exercisedsparingly Uma 2013.03.19 12: 15 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 76 CilRevisionPetitionNol53 of 2009 11V m5 We may notice that ln Y Saraba Reddyv Puthur Rami Reddyand Anre 200721RCR Criminall1014 2 2007 RAJ 692IJT 200761SC 4601this Court opined2 64Undisputedlylt lS an power which 1S C conferredon the Court and should be used very 0 and only if compelling reasons exist for takingactiOll C I against a personagainstwhom action had not beentaken 0 earlier The word evidence in Section 319 I thatevidenceofwitnessesgivenin 13 Z An order under section 319 ofthe Code therefore shouldnot be passedonly because the first informant or one of the I witnesses seeks to other Sufficient and a5 cogent reasons are to be bythe court so as to m the of the Mere ipsedixit would not serve the purpose Such an evidence must be convincing tl one at least for the purpose of exercise of the jurisdiction For the aforementionedpurpose the courts are requiredto applystringent tests one of the tests beingwhether evidence on record is such which would lead to conviction of thepersonsoughtto be summoned In Mann Singh 8 others Versus State of Puniab 8 another 200929 RCR 6Criminao 289 6PH9 while considering the provisions of Section319 CrPC a coordinate Bench observedin 15 and 16 Uma 2013.03.19 12: 15 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 77 CiRevision PetitionNol53 of 2009 1 m6 of thejudgment as underl 15 Ifthe evidencegivenbya Witness is to beignored only on the groundthat same is a of what was stated bythe witness and consideredby the agency 1 tosay that person is not to be added as an accusedit would 0 amount to givingprimacyto the policewhich cannot be C I done in view ofYSarabaReddyscase The Honble C5 Court hasclearlyheld that the conclusionthat the I IOs satisfactionshouldbegivenprimacy is unsustainable 16Each case lS to be decided on the facts of its own An has to be understoodin the context of facts based I whichthe observationsthereinare made 91 on C45 This Court in Chameli Devi Versus State of Haryana Crl 7 RevisionPetition No860 of 2009 decidedon 2082009 held as underl In the consideredopinionof this Court the order L1 suffersSom graveand material No reasons have beengivenfrom where it can be said that petitionerlameli Devi was to be summonedfor the reason that there was sufflcientevidence on record againsther on the basis of which an opinioncould be formulatedthat such material was sufflcient to warrant her conviction if made to face trial Similarlythereis no cogentreasons quathe persons who have beenleft out When the order is examinedin thelightofthe above Uma 2013.03.19 12: 15 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 78 CilRevision PetitionN0153 of 2009 Ilv e7 mentioned position of law with regardto the exercise of power under Section 319 of the CrPC I am of the opinionthat it does not conform to the same The trial Court hasnot evaluatedthe materialbefore it to formulatean opinionas to whether the same is sufficient to warrant the 1 conviction ofthe personssought to be to trial 0 the instant revision petition1S the 3 impugned order is set aside andthematter is remittedback to thetrial Coun t5 I to reconsiderthe same atreshandpass an orderkeepingin Vlew the above observations The neetil be done within three Z weeksofthe receiptofa copy ofthis order 2 e P 2009 Mahesh Grover l SCM Judge 08 1 m Z m 10 9t C 1 11 1 Uma 2013.03.19 12: 15 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document