Kashmir Singh & Anr. v. State of Haryana & Ors.

Present: Mr.S.S.Dinarpur, Advocate, for the petitioners. Mr.Satyavir Singh Yadav, Addl.A.G.Haryana. Mr.H.S.Gill, Sr.Advocate with Mr.Vivek Goyal, Advocate, for respondent No.2. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) challenging order dated 10.2.2011 passed by the Court of revision, whereby the application under Section 319 Cr.P.C., for summoning of respondents No.2 to 7, was dismissed. FIR in question was registered on the basis of the statement of Malkiat Singh. After investigation of the case, challan was not presented against respondent Nos. 2 to 7 but was presented Crl. Rev.No. 596 of 2011 (O&M) 2 against their co-accused. During the pendency of the trial, prosecution moved an application under Section 319 Cr.P.C. for summoning respondents No.2 to 7 to face the trial as additional accused . Trial Court allowed the said application vide order dated

10.5.2010 (Annexure P-1). In revision, filed by respondents No.2 to 7, the said order was set aside by the Court of revision vide impugned order dated 10.2.2011. Hence, the present petition. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be dismissed. In the present case, the FIR in question was lodged during panchayat elections. Although respondents No.2 to 7 are named in the FIR but no specific role has been attributed to them. The said respondents were found innocent during investigation. The Court of revision, while setting aside the order dated

10.5.2010 (Annexure P-1), qua summoning of respondents No.2 to 7, in para 7 of the impugned order, has held as under:- “The law on the point is fairly settled. Power under Section 319 of the Code of Criminal Procedure is an extra ordinary power in the hands of the court to summon and try a person, if it appears from the evidence that such person, not bring the accused has committed any ofrfence for which he could be tried together with the accused. An extra ordinary power has to be exercised judiciously and most sparingly in order to avoid injustice being caused to any person. Since, a trial of case can be Crl. Rev.No. 596 of 2011 (O&M) 3 equated with sword of Damocles, people cannot be summoned as an accused is at the whims of the complainant. The Hon'ble Apex Court has observed in number of cases that the extra ordinary power under Section 319 Cr.P.C. of the Code should be exercise only if the evidence actually points and the possible involvement of the person propsoed to be prosecuted against. In the considered opinion of this Court, it does not appear from the evidence of PW-1 Malkiat Singh or PW-2 Parveen Kumar and PW-3 Kashmir Singh and from the above narrated facts that the persons proposed to be summoned i.e. the present revisionist have committed the offence for which other accused are facing trial, because there was no other evidence before the trial Court to summon the revisionist except the evidence which was available on the file at the time of presenting the charge sheet. The power under Section 119 Cr.P.C. could, therefore, be used only after the legal evidence comes on the record and from the evidence, it appears that the concerned person has committed an offence. But there is lacking of such evidence. The case of revisionist is also squarely covered by the law laid down by this Hon'ble Apex Court in case titled Kailash vs. State of Rajasthan and another, 2008 (2) RCR (Crl.) 200 (SC) which fully applies to the facts of the case.” Crl. Rev.No. 596 of 2011 (O&M) 4 The reasons given by the Court of revision, while allowing the revision petition and consequently dismissing the application under Section 319 Cr.P.C., are sound reasons. No ground for interference by this Court is made out. Accordingly, this petition is dismissed. (SABINA) JUDGE September 05, 2012