CRR 1126 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Date of decision: 15.03.2011 1. CRR 1126 of 2010 Raj Kumar and others ........ Petitioners Versus State of Punjab .......Respondent(s) 2. CRR 2509 of 2010 Harjinder Singh alias Jinder .......Petitioner Versus State of Punjab .....Respondent Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. R N Moudgil, Advocate for the petitioners Ms Gurveen H Singh, Addl. A G Punjab for the respondent State Mr. R S Bains, Advocate for respondent No. 2 -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. Both these petitions are being disposed of by one common CRR 1126 of 2010 2 order as the same arise out of the same FIR and are also against the same order dated 20.03.2010 passed by the Additional Sessions Judge (Ad hoc) Rupnagar. Vide order dated 20.03.2010 passed by the Additional Sessions Judge (Ad hoc) Rupnagar, petitioners, namely, Raj Kaur, Harjit Kaur, Satwinder Kaur (in CRR No. 1126 of 2010) and petitioner Harjinder Singh (in CRR No. 2509 of 2010) have been summoned under section 319 Cr.P.C to face trial in complaint as additional accused. Facts giving rise to filing of the revision petition are that FIR No. 65 dated 14.07.2009 was registered at Police Station Nurpur Bedi, District Ropar for offences under Sections 323, 307, 341 and 34 IPC on the information given by Kulwinder Singh (accused in the case) against some persons, in which, Harmesh Singh son of Gulzar Singh was one of the accused persons having caused injuries to the complainant party. Harmesh Singh etc. are facing trial for the said offence in the court of the Additional Sessions Judge (Ad hoc) Fast Track Court, Rupnagar. On the statement of Harmesh Singh, the police of police Station Nurpur Bedi set up a cross case in the same FIR. Harmesh Singh levelled allegations against Kulwinder Singh son of Daya Singh, Daya Singh son of Chanchal Singh, Harjinder Singh alias Jinder son of Kirat Singh, Maninder Singh alias Sammi son of Kesar Singh, Raj Kaur wife of Daya Singh, Harjit Kaur wife of Kirat Singh and Satwinder Kaur wife of Kesar Singh for alleged offence under sections 323, 324, 34 IPC. After the investigation conducted by the Police, report under Section 173 was submitted against two persons, namely Kulwinder Singh and Daya Singh under Sections 323, 324, 34 IPC and has found others, named above, including the petitioners as innocent. The names of CRR 1126 of 2010 3 the other five including petitioners have been mentioned in Column No. 2 of the report under section 173 Cr.P.C. During trial, complainant Harmesh Singh was examined as PW2. He reiterated his allegations in his examination in chief when the police set up a cross case. He was also cross examined. On the basis of his evidence, the learned trial Court summoned the petitioners namely, Raj Kaur, Harjit Kaur, Satwinder Kaur ( in CRR No. 1126 of 2010) and petitioner namely Harjinder Singh (in CRR No. 2509 of 2010) under section 319 Cr.P.C. Aggrieved, the petitioners have filed the present revision petition against the order dated 20.03.2010 passed by the trial Court, summoning the petitioners under section 319 Cr.P.C. While impugning the aforesaid order, learned counsel for the petitioner submitted that there was no material on record on the basis of which, the petitioners have been summoned under section 319 Cr.P.C. The only statement before the trial Court was the statement of complainant- Harmesh Singh PW2 who simply reiterated his allegations in his examination in chief what he had stated before the police on 15.07.2009. Therefore, the same is not in consonance with the proposition laid down by the Hon'ble the Supreme Court, wherein, it has been authoritatively held that the persons cannot be summoned to face a trace on the basis of mere suspicion and that the Court should satisfy that there was a possibility of his conviction. Learned counsel for respondents No. 2, while vehemently opposing the prayer of the petitioners, submitted that there was specific allegations in the statement of complainant Harmesh Singh made before the police and also in his examination in chief and cross examination before the trial Court. It is further submitted that there is no evidence or ground on CRR 1126 of 2010 4 the basis of which the police found the petitioners innocent. There are specific allegations levelled by the complainant and the complainant has stood by these allegations before the trial Court. The medical evidence corroborates the statement of the complainant. As such, the order dated 20.03.2010 passed by the Additional Sessions Judge (Ad hoc) Fast Track Court, Ropar, summoning the present petitioners should not be interfered. Heard. It is a well settled proposition of law that an order under Section 319 Cr.P.C should not be passed only because one of the witnesses wish to implicate another person. The Courts are required to apply stringent tests; one of the tests is that the Court should come to the reasonable conclusion on the basis of evidence before it that the same is likely to lead to conviction. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, while considering the basic requirements of Section 319 of the Code, Court said: “The basic requirement 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 entertain 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 CRR 1126 of 2010 5 that for such offence that other person could as well be tried along with the already arraigned accused.” In Krishnappa v. State of Karnataka reported as 2004 (4) RCR (Criminal) 678, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused. The Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388, in para 17, observed as under:- “17. The provision of Section 319 of the Code, on a plain reading,provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined: "...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. CRR 1126 of 2010 6 The word “evidence" in Section 319 contemplates that evidence of witnesses given in Court..." An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.” On the other hand, there is also no dispute with the proposition of law laid down by Hon'ble the Supreme Court in the case of Suman vs. State of Rajasthan and another reported as 2009(4) RCR (Criminal) 908 that the Sessions Court can take cognizance against the person qua whom there is a no committal order and can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused and a person can be proceeded against under Section 319 Cr.P.C if from the evidence collected/produced in the course of any inquiry, the Court is prima facie satisfied that such person has committed offence for which he can be tried with other accused. Coming back to the present case, statement of the complainant before the police as well as before the Magistrate is consistent and the CRR 1126 of 2010 7 allegations read as under:- “It was about 9.00 a.m. Then, Kulwinder Singh son of Daya Singh, Daya Singh son of Chanchal Singh, Harjinder Singh son of Kirat Singh, Maninder Singh son of Kesar Singh, all these persons dragged me out side from my house and took me street. Harjinder Singh who was armed with gandassi and gave a gandassi blow on my head. Kulwinder Singh gave a gandassi blow on my left shoulder, Raj Kaur wife of Daya Singh, Satwinder Kaur wife of Kesar Singh, Harjit Kaur wife of Kirat Singh, who were armed with bricks and stones and started brick batting in our Court yard.” From the perusal of the above, the allegation qua petitioners, namely, Raj Kaur, Harjit Kaur, Satwinder Kaur (in CRR No. 1126 of 2010) is not convincing. No injury has been attributed to them and probably, they have been enroped only to put pressure being lady members of the house. Whereas, allegation qua petitioner Harjinder Singh (in CRR No. 2509 of 2010) is supported by the medical evidence. It is not disputed by the learned counsel for the petitioners that there is specific allegation against petitioner Harjinder Singh. Harjinder Singh was armed with gandassi and he gave gandassi blow on the head of the complainant. The said injury finds mention in the medical report. Thus, the allegation in the FIR and the statement of the complainant is corroborated by the medical evidence. Moreover, learned counsel for the petitioners has not been able to pin point as to on what basis Harjinder Singh was allowed to go Scot free by the investigating agency. Thus, from the evidence at this stage, there appears to be a fair chance of conviction of Harjinder Singh. CRR 1126 of 2010 8 While applying the test as laid down in the cases of Sarabjit Singh and another and Suman (supra), criminal revision No. 1126 of 2010 is allowed and the order dated 20.03.2010 passed by the Additional Sessions Judge (Ad hoc) Fast Track Court, Ropar summoning the petitioners is set aside only qua petitioners, namely, Raj Kaur, Harjit Kaur, Satwinder Kaur, whereas, CRR No 2509 of 2010 filed by the Harjinder Singh is dismissed and there is no reason to interfere in the order dated 20.03.2010 passed by the Additional Sessions Judge (Ad hoc), Fast Track Court, Rupnagar vide which, discretion has been exercised to summon Harjinder Singh under Section 319 Cr.P.C. At the stage, learned counsel for Harjinder Singh submitted that Harjinder Singh is in Army and is presently serving at his place of posting, as such, the personal appearance of Harjinder Singh be exempted. The request is fair. Accordingly, the personal appearance of Harjinder Singh shall remain exempted before the trial Court except as and when required by it. The observation as above shall have no bearing on the merits of the case. A copy of this order be placed on the connected case. (Nirmaljit Kaur) Judge 15.03.2011 mohan