Crl. Revision No.2884 of 2010 - 1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.2884 of 2010 Date of decision:- December 8, 2011 Santosh Kaur .....Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. ADS Sukhija, Advocate for the petitioner. Mr. Gaurav Garg Dhuriwala, DAG, Punjab, for the State. Mr. APS Deol, Sr. Advocate, with Mr. Vishal Rattan, Advocate, for respondent No.4. Mr. Vipin Mahajan, Advocate, for respondent No.5. **** RANJIT SINGH, J. The petitioner has filed this petition to impugn the order passed by the Additional Sessions Judge, Gurdaspur, whereby the prayer of the prosecution for summoning Rajinder Singh, Balwinder Kaur and Sandeep Kaur to face trial as additional accused has been declined. Son of the petitioner namely Gupreet Singh was murdered on 11.8.2009. The FIR was recorded on the statement of Dharam Singh, uncle of the deceased Gurpreet Singh, who had Crl. Revision No.2884 of 2010 - 2- married Jatinder Kaur, D/o Jaspal Singh (respondent No.3) against the wishes of her parents. As per the allegation, he was murdered because of this act on his part. After investigation, Police filed challan against Manjit Singh, and Jaspal Singh. However, the Police did not file challan against Rajinder Singh, Balwinder Kaur and Sandeep Kaur to be involved in the case and accordingly, shown these persons in column No.2. While appearing as witness, petitioner-Santosh Kaur (mother of the deceased Gurpreet Singh) has now named Rajinder Singh alias Balla, S/o Tarlok Singh,, Balwinder Kaur, D/o Manjit Singh and so also Sandeep Kaur, W/o Sohan Singh, who had taken active part in the commission of murder, but were kept in column No. 2 in the report submitted under Section 173 Cr.P.C. On the basis of this evidence, notice was given of this application to the accused already before the Court. Dharam Singh, who lodged the FIR, however, has resiled from his statement and declared hostile by the prosecution. As per the evidence of Santosh Kaur, she has named Rajinder Singh alias Bala, Balwinder Kaur and Sandeep Kaur. The Court, however, has discussed the evidence of Santosh Kaur and found that this is contrary to her statement, which she made before the Police and had given new version where she introduced the name of her daughter Harpreet Kaur as eye witness. Noticing the evidence in detail, the Court found that no case for summoning these persons is made out. This order now is under challenge through the present petition. Learned Senior counsel appearing for respondent No.4 sought to be summoned, has taken me through the impugned order Crl. Revision No.2884 of 2010 - 3- and has made an attempt to justify the reasoning given by the Court in declining to summoning respondents No.4 to 6 as additional accused. Counsel further submits that the entire evidence has been recorded. Even investigating officer has also been examined and the case is now fixed for 23.12.2011 for recording the evidence of some formal witnesses. I have considered the impugned order in its entirety. There is justification in the submission made by the counsel for the petitioner that the Court has taken upon itself to minutely analyze the depth of the evidence and thereafter, has held that no case is made out for summoning the respondents as additional accused. That is not the requirement provided at the stage of summoning additional accused under Section 319 Cr.P.C. No doubt, in this case the Court is not required to see only the prima facie case and something more than that is to be seen, but it is certainly lesser than the proof which finally the Court has to look for. The test to be applied for summoning under Section 319 Cr.P.C is well settled. In Michael Machado and another Vs. Central Bureau of Investigation, 2000 (3) Supreme Court Cases 262, the Hon'ble Supreme Court has held that the basic requirement under Section 319 Cr.P.C is that the Court must have reasonable satisfaction from the evidence already collected during trial or inquiry regarding two aspects. Firstly, that some other person, who is not arraigned as an accused in that case has committed an offence. Secondly, that for such offence that other person could as well be tried along with the already arraigned accused. As held in this case, the court has a discretionary power Crl. Revision No.2884 of 2010 - 4- to summon a person as an additional accused to stand trial, but it is not to be exercised on the ground that the court entertains some doubts about his involvement in the offence. To summon a person to face trial under Section 319 Cr.P.C., the court must have reasonable satisfaction from the evidence already collected. The court in this regard held as under:- “The basic requirements 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, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the courts must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused.” Reference here can also be made to the case of Sarabjit Singh & Anr. Vs.State of Punjab & Anr., AIR 2009 Supreme Court 2792, where the court has observed that a person should not be summoned even if prima facie case is made out and he can be so Crl. Revision No.2884 of 2010 - 5- summoned when the evidence on record would reasonably lead to conviction of a person sought to be summoned. Reference can also be made to the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors., 1983 (1) RCR (Crl.) 73 where the court had struck a note of caution by saying that this is really an extra-ordinary power, which is conferred on the court and should be used very sparingly and only if the compelling reasons exist for taking cognizance against other person against whom action is not being taken. In Krishnappa Vs. State of Karnataka, 2004(7) JT 509, again it is observed that the power is an extraordinary power and should be used very sparingly when only compelling reasons exist for taking cognizance against the other person against whom the action is not being taken. The analysis of the judgments afore-mentioned and the other judgments on the issue would clearly show that this discretion is not to be exercised in routine and should be sparingly so exercised by passing a reasoned order. Additional accused cannot be summoned when some doubt is entertained, but he is to be so summoned after reasonable circumstances emerge from the evidence already collected. Suspicion alone may not be sufficient and accused is to be summoned or should be so summoned when there is a reasonable prospect of convincing him of the offence charged. This, however, would not mean that at this stage the court is required to analyse the evidence and see the worth of it after appreciating and then determine whether there would be a prospect of conviction or not. The requirement may be more than a suspicion and a prima facie Crl. Revision No.2884 of 2010 - 6- case being made out, but at this stage it has to be less than proof which ultimately the court has to look for after the conclusion of the evidence. Detailed analysis of the evidence and to appreciate the worth of the evidence at this stage is certainly not called for nor can this be made out from any of the judgments delivered on the issue, which are plenty in number. All the tests that have been noticed in different judgments do not provide that the court has to minutely see the evidence and not to conclude whether case of conviction is made out or not. At this stage, only a reasonable prospect of conviction is to be seen. It appears that the Court has not applied the relevant test as laid down by the Hon'ble Supreme Court in all these judgments while declining the prayer of the prosecution to summon the additional accused. It should not be taken to mean that this Court has in any manner expressed any opinion that respondents No.4 to 6 are required to be summoned as additional accused on the basis of evidence. This aspect ultimately is to be seen only by the trial Court. What is being viewed is that the trial Court has not taken into account the relevant consideration while declining this prayer to summon respondent Nos.4 to 6 as additional accused. Accordingly, the case is, thus, made out for remitting the case back to the trial Court to reconsider the issue in the light of the law. The Court would be at liberty to take any view on the basis of evidence and it is entirely in the discretion of the Court to see whether the case is made out to summon respondents No.4 to 6 as additional accused or not. Counsel appearing for the respondents-applicant has made reference to the observation made in Michael Machado's case Crl. Revision No.2884 of 2010 - 7- (supra), where the Court had also gone into all the aspect for summoning an additional accused. These aspects have to be kept in view by the Court while reconsidering the issues. Parties would be at liberty to make statement entirely before the trial Court. The present petition is, accordingly, disposed of. December 08, 2011 ( RANJIT SINGH ) monika JUDGE