AT CHANDIGARH v. State of Punjab

Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. *****

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition against the order dated 19.05.2010 passed by Additional Sessions Judge, Ludhiana, wherein, the present petitioner Santokh Singh has been summoned as an accused. FIR No.40 dated 31.03.2003 under Sections 376, 341, 506 and 511 IPC was registered against the present petitioner at Police Station Sidhwan Bet, Ludhiana. He was found innocent during investigation. Thereafter, the petitioner was summoned under Section 319 Cr.P.C vide Order dated 19.05.2010 passed by Additional Sessions Judge, Ludhiana as an additional accused. Aggrieved, the petitioner has filed the present revision petition. While challenging the impugned order summoning the petitioner, learned counsel for the petitioner submitted that the petitioner was found innocent on the basis of evidence collected by the police, wherein, it was found that the present petitioner was not present at the spot and remained at Jagraon Crl. Rev. No.2186 of 2010 2 Grain Market. However, the present petitioner has been summoned only on the evidence of PW-1 Gurdev Kaur-complainant who again stated before the Court that the present petitioner Santokh Singh came to the spot along with other accused and took part in crime. Thus, there is no difference in the statement made by the complainant when the FIR was registered and the statement before the Court. The petitioner has already been found innocent by the police on the basis of same evidence. Thus, there was no fresh evidence before the Court to summon the petitioner under Section 319 Cr.P.C and reliance has been placed on various judgments of Hon'ble the Apex Court by learned counsel for the petitioner to state that the petitioner could not have been summoned in routine manner and it was necessary for the Court to record a finding that the evidence so recorded is likely to result in conviction of the petitioner. Learned counsel for the parties have been heard. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, 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 that for such offence that other person could as well be tried along with the already arraigned accused.” Crl. Rev. No.2186 of 2010 3 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. The word “evidence" in Section Crl. Rev. No.2186 of 2010 4 319 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.” Hon'ble the Supreme Court in Sarabjit Singh's case (supra) also held that unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz. (i) an extra ordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. In the present revision petition, the only evidence, on the basis of which the petitioner is summoned, is PW-1 Gurdev Kaur. The relevant part of the statement reads thus :- “ Then Santokh Singh son of Charan Singh, Balraj alias Raju son of Gurmail Singh, Puran Singh son of Bakhtaur Singh, Darshan Singh son of Sona Singh and Sanjhi of Balraj Singh namely Karam Singh. I identified all the accused present in the Court except Santokh Singh. They came on a vehicle and parked the same and alighted from the vehicle and started abusing to us in a filthy language and they also slapped me and threatened us you have illegally possessed our land.” A perusal of the said statement shows that there is not even Crl. Rev. No.2186 of 2010 5 an iota of allegation involving commission of an offence under Section 376 IPC. Thus, the same in itself is not sufficient to come to the conclusion that the evidence was sufficient and likely to result in conviction. Summoning of an accused is a serious matter. Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of provisions of Section 319 Cr.P.C. The evidence should at least be convincing for exercising of an extraordinary jurisdiction. Stringent test should be applied which is definitely not apparent from the facts of the present case. In the present case, there was no additional evidence to summon the petitioner. The allegation in the FIR was investigated into. The petitioner was found innocent. The same allegations were repeated in the statement of PW-1 Gurdev Kaur. Even the said statement did not make out an offence under Section 376 IPC. In view of the above discussion, the impugned order dated

19.05.2010 passed by Additional Sessions Judge, Ludhiana cannot be sustained and is, accordingly, set aside as there is no evidence or material or any compelling reason to justify the power under Section 319 Cr.P.C. However, the present petition is allowed with liberty to the prosecution to move a fresh application, in case of any fresh and substantial evidence which may come forward during trial and is prima facie likely to result into conviction.

29.09.2010 gurpreet (NIRMALJIT KAUR) JUDGE