Criminal Revision No.1768 of 2009 -1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Revision No.1768 of 2009 Date of Decision:11.11.2009 Barahmjit Singh @ Sunny and another .....Petitioners Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Anil Kumar Lamdharia, Advocate for the petitioners. Mr. T.S. Salana, Deputy Advocate General, Punjab. **** JUDGMENT HARBANS LAL, J. This revision is directed against the order dated 9.3.2009 Annexure P.1 passed by the Court of learned Sessions Judge, Jalandhar, whereby he allowed the application moved under Section 319 of Cr.P.C for summoning Manjit Kaur wife of Surjit Singh and Sunny alias Barahmjit Singh son of Sukhdev Singh as additional accused. The brief facts giving rise to this petition are that Brahmjit Singh alias Sunny is a student of 10+2 and he was juvenile on the date of alleged incident as is clear from his matriculation certificate Annexure P.2. Paramjit Kaur made statement before the police that “I have failed in 8th Class and now I am doing household work with my parents. On 23.8.2008, at about 12:30 P.M., my father Balwinder Singh had gone for doing the Criminal Revision No.1768 of 2009 -2 work as a daily wager. My mother had gone in connection with demise of Surjit Kaur. My paternal grandmother and Sandeep Kaur daughter of my father's sister were present in the house. I had gone to the house of my paternal aunt Raj Kaur for handing over the under garments of her grand son. When I was returning back, Manjit Kaur wife of Surjit Singh (referring to the accused) called me. When I entered the house, Daljit Singh alias Ballu son of Sukhdev Singh resident of Village Butran, put his hands on my mouth and took me inside the house forcibly. At that time, one CD was being played. The volume was increased. He asked his paternal aunt to lock the door from outside. Ballu removed my clothes and committed rape upon me forcibly. After some time, his brother Sunny knocked the door from outside. Ballu opened the door. Then Sunny and his aunt came inside the door. They put a piece of cloth on my mouth and threatened me thrice to kill me and my family members. I raised alarm and on listening the same, son of my uncle came at the spot and on seeing him, all ran away from the spot. Out of fear, I did not disclose anything to my parents. Today, I have told the whole truth.” That the petitioners were rightly declared innocent by the Investigating Agency and were put in column No.2 of the report submitted under Section 173 of Cr.P.C. Now they have been summoned to face trial along with their co-accused vide impugned order, which is totally erroneous. As a matter of fact, this is a counter blast to the case FIR No.161 dated 3.12.2007 under Sections 323, 506, 427 of IPC and 3 & 4 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, against Kundan Singh, Bhajan Singh, Manjinder Singh and Mohinder Pal as they are influential persons and got registered the present case, so that the Criminal Revision No.1768 of 2009 -3 said case can be compromised. They have used Paramjit Kaur as an instrument for registration of the FIR against the petitioners, because the main accused is the nephew of petitioner No.2 and brother of petitioner No.1, who was witness though petitioner No.2 is the complainant in the aforesaid FIR. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioners submitted that a glance through the impugned order would reveal that it has been passed in a mechanical manner without application of judicial mind. As held by Hon'ble the Supreme Court, before summoning anyone as an accused under Section 319 of Cr.P.C, it is very much necessary for the Court to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if goes unrebutted, would lead to conviction of the person sought to be added as accused in the case. In the present one, such satisfaction is totally missing. The trial Court has even failed to refer to the evidence which has come on record on the basis of which it may arrive at any finding against the petitioners. To buttress this stance, he has relied upon Michael Machado & Another v. Central Bureau of Investigation & Another, 2000(2) Recent Criminal Reports (Criminal) 75, Palanisamy Gounder and another v. State Represented by Inspector of Police, 2006(2) Recent Criminal Reports (Criminal) 235, Lok Ram v. Nihal Singh, 2006(2) Recent Criminal Reports (Criminal) 707 and Ram Singh & Others v. Ram Niwas & Another, 2009(3) Recent Criminal Reports (Criminal) 501. Criminal Revision No.1768 of 2009 -4 To tide over these submissions, the learned State Counsel maintained that the evidence on the basis of which, the petitioners have been summoned to face trial along with their co-accused clearly indicates their involvement in the commission of the crime and that being so, the impugned order in no manner can be faulted with. I have well considered the rival contentions. In re: Michael Machado & Another (supra), it has been observed by the Apex Court that Court has discretionary power to summon a person as an additional accused to stand trial. It is not enough that Court entertained some doubt about his involvement in the offence. The Court must have reasonable satisfaction from the evidence already collected. There is no compelling duty on Court to proceed against other persons. Suspicion is not sufficient that there is reasonable prospect of convicting the additional accused of the offence. In re: Palanisamy Gounder and another (supra), it has been held that power under Section 319 of Cr.P.C cannot be exercised so as to conduct a fishing inquiry. Person be added as an accused only when there is a reasonable prospect of the case against such accused ending in their conviction. Unless the Court is hopeful that there is reasonable prospect of the case against the newly added accused ending in their conviction in the offence concerned, the Court shall refrain from adding them as accused. In case Lok Ram (supra), Hon'ble the Supreme Court has summed up the law on Section 319 of Cr.P.C as under:- (i) Power under Section 319 Cr.P.C can be exercised by the Court suo motu or on an application by someone including accused already before it. Criminal Revision No.1768 of 2009 -5 (ii) The power is discretionary and such discretion must be exercised judicially having regards to the facts and circumstances of the case. (iii) 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. (iv) A person named in FIR, but not charge sheeted can also be added to face trial only on basis of evidence adduced before court and not on the basis of materials available in the charge sheet or in case diary. (v) Trial Court has jurisdiction to add a person as accused at any stage of proceedings – It will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced – This is by virtue of legal fiction created by Section 319(4)(a)(b). (vi) There is no compelling duty on court to proceed against other persons merely on the ground that some evidence had come on record implicating the person sought to be added as an accused – Order is not to be passed mechanically. In re: Ram Singh & Others (supra), again the Apex Court ruled that “Court should summon a person as an additional accused only when the Court is satisfied that evidence against him would lead to Criminal Revision No.1768 of 2009 -6 conviction.” The legal ground is clear. Now it is to be noticed as to whether in view of the afore-quoted law, the learned trial Court was justified in summoning the petitioners to face trial along-with their co-accused. The operative part of the impugned order reads as under:- “5. From the evidence produced by the prosecution, it appears that Manjit Kaur and Sunni, accused entered into criminal conspiracy with Daljit Singh, accused and in pursuance of that criminal conspiracy, offences under Sections 376 and 342 were committed. From that evidence, it also appears that these accused committed the offence under Section 506 IPC by criminally intimidating by threatening her with injury to her person. For these offences they are liable to be tried along with Daljit Singh, accused. 6. Accordingly, the application is allowed. Both these accused be summoned to stand their trial for the aforesaid offences.” Palpably, the impugned order reflects non-application of mind. The learned trial Court has obviously used the words, “it appears” which in my estimation does not fulfil the legal requirements referred to hereinbefore. The learned trial Court has observed that “it appears that Manjit Kaur and Sunni, accused entered into criminal conspiracy with Daljit Singh, accused and in pursuance of that criminal conspiracy, offences under Sections 376 and 342 were committed. From that evidence, it also appears that these accused committed the offence under Section 506 IPC by criminally Criminal Revision No.1768 of 2009 -7 intimidating by threatening her with injury to her person.” The learned trial Court has not referred to evidence, if any, revealing that the above- mentioned accused had hatched conspiracy. The petitioners have come up with a specific plea that indeed it is a counter-blast to the case FIR No.161 ibid. There can be every possibility to rope in the petitioners in FIR No.102 to exert pressure upon the petitioners to enter into compromise in case FIR No.161 ibid. The petitioner No.1 has been cited as a witness, whereas petitioner No.2 is a complainant in FIR No.161 ibid. The allegations against these petitioners are of such a nature, which hardly inspire confidence. As a sequel of the above discussion, this revision is accepted and the impugned order is set aside. November 11, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No