Crl. Misc. No. M-14481of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No. M-14481of 2010 (O&M) Date of Decision: 3rd November, 2011 Hardial Singh Sidhu ……… Petitioner Versus State of Punjab ………… Respondent ***** CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Rajesh Kumar Dadwal, Advocate for the petitioner. Mr. Vishal Munjal, Addl. A.G., Punjab. Mr. R.K. Chauhan, Advocate for the complainant. **** AUGUSTINE GEORGE MASIH, J. (Oral) Challenge in this petition is to the order dated 6.4.2010 passed by the Chief Judicial Magistrate, Hoshiarpur (Annexure P-6), vide which the petitioner along with two others have been summoned to face trial as an additional accused on an application moved under Section 319 Cr.P.C. It is the contention of the counsel for the petitioner that there is no specific allegation against the petitioner in the FIR nor has any evidence come on record before the trial Court in the statements given by the prosecution witnesses, which would suggest that the petitioner was involved in the commission of offence to face trial for which the petitioner has been summoned. He has referred to the FIR as also the statements made by the complainant Harinder Singh-PW-1 (Annexure P-7) and Buta Singh-PW-2 (Annexure P-8). He on this basis contends that the summoning order qua the petitioner deserves to be set aside. On the other hand, counsel for the respondent submits that the petitioner is husband of Kamaljit Kaur and father of Harjinder Kumar and Aman Avtar, without his connivance the agreement to sell could have not been executed. He has given an affidavit dated 15.3.2005 wherein he has admitted the factum of Crl. Misc. No. M-14481of 2010 2 agreement to sell dated 3.7.2003 entered into by his wife Kamaljit Kaur and sons Harjinder Kumar and Aman Avtar to sell 67 Kanals-3 Marlas of land. This affidavit was given by the petitioner during the course of the compromise proceedings initiated. On this basis it has been contended that the role of the petitioner is quite specific and clear the statements given by the prosecution witnesses. He submits that Harinder Singh-PW-1 had stated that the agreement to sell dated 3.7.2003 was entered into in presence of Hardial Singh and referring to the evidence of Buta Singh-PW-2 he contends that the agreement was for Rs. 16,00,000/-, was entered into between Kamaljit Kaur and sons Harjinder Kumar and Aman Avtar, where the petitioner was also present. He accordingly contends that the petitioner has been rightly summoned by the trial Court. I have heard counsel for the parties and have gone through the records of the case. Perusal of the FIR, which has been appended as Annexure P-1 with the petition, would show that the petitioner does not come into picture at all either during the execution of the agreement or when the period is extended for executing the sale deed nor is he stated to be present when on different occasions money was handed over to Kamaljit Kaur . Statements given by the prosecution witnesses before the trial Court, except for mentioning that the petitioner was present at the time of the agreement dated 3.7.2003 was executed between Kamaljit Kaur and sons Harjinder Kumar and Aman Avtar, no overt act has been attributed nor his role shown anywhere at the subsequent stage. In the absence of any specific allegations or overt act or role of the petitioner, the petitioner cannot be said to have been involved in the commission of the offences for which he has been summoned. It is settled proposition of law that an application under Section 319 Cr.P.C., when moved by the prosecution, the Court must satisfy that the evidence, which has been produced in Court or has come to the knowledge of the Court appears to be such that the person who is being summoned for being tried along with the other accused has committed an offence for which he is being summoned. That evidence is not forthcoming in Crl. Misc. No. M-14481of 2010 3 the present case and order dated 6.4.2010 summoning the petitioner on an application moved under Section 319 Cr.P.C. does not fulfill the said test as the evidence discussed above does not disclose the commission of offence for which he has been summoned. In view of the above, the present petition is allowed. Order dated 6.4.2010 passed by the Chief Judicial Magistrate, Hoshiarpur (Annexure P-6) is quashed qua the petitioner only. 3rd November, 2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE