Rajwinder Kaur v. State of Punjab

Present:- Mr. B.S.Sidhu, Advocate for the petitioner. Mr.S.S.Bhinder, Addl. AG, Punjab Mr. K.B.S.Mann, Advocate for respondent no.2. RAJAN GUPTA, J In the present revision petition, the petitioner has impugned the order dated 20.2.2009 (Annexure P-2) passed by Additional Sessions Judge, Muktsar whereby he upheld the order dated 1.8.2008 (Annexure P- 1) of the trial court to summon the petitioner as an additional accused in exercise of power under Section 319 Cr.P.C. The complaint was lodged by one Gurdip Kaur against the petitioner and her husband Bohar Singh, alleging that they attacked her on 5.6.2007 at about 8AM and caused injuries to her. Resultantly FIR No. 66 dated 6.6.2007 under Sections 323, 325, 34 IPC was registered at police station Lambi. An investigation ensued pursuant to which the investigating agency presented challan against accused Bohar Singh. The petitioner was however found innocent and her name was kept in column no.2. During the trial the complainant stepped into the witness box as PW2 and on the basis of her statement the trial court decided to summon Crl. Misc. No.M-12823 of2009 (O&M) 2 the petitioner as additional accused. The said order was challenged by the petitioner before the Additional Sessions Judge, Muktsar who dismissed the revision petition. Aggrieved petitioner has preferred the instant petition before this Court. Learned counsel for the petitioner has argued that Gurdip Kaur when stepped into witness box as PW2 merely reiterated the allegations levelled in the FIR. According to him, no fresh evidence has come before this Court which would warrant summoning of petitioner under Section 319 Cr.P.C. He has thus prayed that the order summoning the petitioner as additional accused deserves to be set aside. Learned State counsel has submitted that a fair investigation was conducted by the investigating agency and the challan was presented on the basis of same. Learned counsel for the complainant has, however, vehemently opposed the prayer made in this petition. He submits that statement of Gurdip Kaur as prosecution witness was sufficient to summon the petitioner as additional accused. I have heard learned counsel for the parties and given thoughtful consideration to the facts of the case. It is evident that on the basis of the complaint made by Gurdip Kaur that a detailed investigation was conducted by investigating agency and after conclusion of the same it decided to present the chargesheet under Section 173 Cr.P.C against Bohar Singh. The petitioner namely Rajwinder Kaur was found innocent in the investigation. During the course of trial when Gurdip Kaur stepped into the witness box she reiterated the allegations as levelled in the FIR and on the basis of same the trial court proceeded to summon the Crl. Misc. No.M-12823 of2009 (O&M) 3 petitioner as additional accused under Section 319 Cr.P.c. There can be no doubt that there was no fresh material before the Court to come to a conclusion that Rajwinder Kaur was actually involved in the incident and certain injuries had been caused by her. The order summoning the petitioner was challenged before the revisional court. The said court proceeded on the basis that from statement of Gurdip Kaur a prima facie case was made out which was sufficient for summoning her(petitioner) under Section 319 Cr.P.C. In my considered view mere existence of a prima facie case would not be sufficient reason for summoning as a accused under Section 319 Cr.P.C. The Court must reach a reasonable satisfaction that person sought to be summoned had committed the offence. In other words, Court would not be justified in summoning the accused because it entertains a doubt that said person may have been involved in the occurrence. In the case titled as Michael Machado vs. Central Bureau of Investigation 2000(2) RCR (Crl) 79, Hon'ble Apex Court held as follows:- “11. 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 accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, involvement of another person in the offence. In other Crl. Misc. No.M-12823 of2009 (O&M) 4 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 that for such offence that other person could as well be tried along with the already arraigned accused.

12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.” In my considered view the test laid down by the Hon'ble apex court in Michael Machado's case (supra) is not satisfied. There was no material before the Court below to come to a conclusion that petitioner needed to be summoned to face trial. Mere doubt is not sufficient for summoning an accused under Section 319 Cr.P.C. I am thus of the considered view that the impugned order needs to be interfered with. Crl. Misc. No.M-12823 of2009 (O&M) 5 Accordingly, the revision petition is allowed. The order under challenge is hereby set aside. November 10 , 2010 (Rajan Gupta) Judge