Ashwani Kumar vs State of Haryana

Nawab Singh, J.—This petition u/s 482 of Code of Criminal Procedure is directed against the order dated November 30, 2006 passed by

Sessions Judge, Yamuna Nagar, whereby, application u/s 319 of Code of Criminal Procedure (for short ''Cr.P.C.'') filed by prosecution was

dismissed.

Case First Information Report No. 86 dated May 11, 2006 under Sections 323, 324, 307 and 447 read with Section 34 of Indian Penal Code

was registered in Police Station Sadar, Yamuna Nagar on the allegations that Jaspal, Naresh, Parveen Kumar and Suresh were out to pick up a

fight with their cousin Arun Kumar and his uncle Sanjiv Kumar. Parveen Kumar and Suresh gave slab and fist blows to Arun Kumar and Sanjiv

Kumar. Then Jaspal gave gandasa blow on the head of Arun Kumar. Naresh Kumar gave a khoncha blow on the head of Sanjiv Kumar.

After investigation, it was found by the Police that Parveen Kumar and Suresh Kumar did not participate in the occurrence and they did not

cause any injury. They were not challaned. Others were sent up for trial and charge under Sections 307, 323, 324 and 447 read with Section 34

IPC was framed them. After recording some evidence, application u/s 319 Cr.P.C. was filed by prosecution praying that Parveen Kumar and

Suresh be summoned for being tried along with other accused. That application was rejected by the trial Court by impugned order.

It calls for pointed notice that while passing the impugned order, learned Sessions Judge observed as under :

The matter was investigated by the Police and it was concluded that Parveen Kumar and Suresh Kumar had neither actively participated in the

incident nor they had used force against the two alleged victims. A perusal of the medico- legal report of injured Arun Kumar would show that the

doctor had found an incised wound over the occipital region of the scalp which was 8 cms x bone deep. The injured also complained of pain on

the left shoulder. The medico- legal report of Sanjiv Kumar shows that he suffered an incised wound over the occipital region which was 3 cms x 2

cms. Both the injured had thus suffered one injury each in the incident although injured Arun Kumar complained of pain and swelling in the right

shoulder and the doctor did not come across marks of injury on the faces of the injured which could be caused by slaps and fisticuffs. Therefore,

the conclusion drawn by the investigating officer cannot be negated by repetition of the allegations made by PW Ashwani Kumar in the witness

box. His ocular testimony does not receive corroboration from the medical evidence on record that the injured had been roughed up before they

were attacked with sharp edged weapons by accused Jaspal and accused Naresh. No interference is thus called for at this stage.

The basic requirement for involving Section 319 Cr.P.C. is that it must appear to the court from the evidence in any inquiry or trial that some

other person, who is not arraigned as an accused, has committed an offence for which that person could be tried together with the accused already

before the court. A small suspicion or some doubt would not suffice. The court must have reasonable satisfaction from the evidence collected that

firstly the other person has committed an offence and that for such offence the other person could be tried along with the accused.

The provisions of section 319 Cr.P.C. confer a discretion on the Court and the discretionary power has to be exercised in order to achieve

criminal justice. A person is not to be summoned as an additional accused to stand trial with others merely for the asking. A judicial exercise would

be called for and conspectus of the case, the stage at which the trial has reached, the quantum of evidence collected shall have to be considered

and it is also to be remembered that it is not compelling duty on the court to proceed against the person concerned. More often such persons are

sought to be summoned for being proceeded against as an accused by the complainant parties who were found innocent by the investigating

agency and were not challaned. While the final report submitted by the Police is not binding on the court it is not a meaningless thing either. The

provision (319 Cr.P.C.) is rather an extraordinary power conferred on the court and has to be used sparingly only when compelling reasons exist

for taking cognizance against the other person against whom action has not been taken.

In a recent judgment, Hon''ble Supreme Court in case Mohd. Shafi v. Mohd. Rafiq and another 2007 (2) RCR (Crl.) 762 : 2007 (2) RAJ 534

(SC), observed in pars 7 as under:

Before, thus, a trial seeks to take recourse to the said provision, the requisite ingredients therefore must be fulfilled. Commission of an offence by

a person not facing trial, must, therefore, appears to the Court concerned. It cannot be ipse dixit on the part of the Court. Discretion in this behalf

must be judicially exercised. It is incumbent that the Court must arrive at its satisfaction in this behalf.

In the above case, Hon''ble Supreme Court referred to the decision rendered in Municipal Corporation of Delhi v. Ram Krishan Rohtagi & others,

1983 (1) RCR (Cri) 73 and highlighted the following remarks made in para No. 19 therein which are to the following effect:

19... But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly

and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

It was further stated in para 13 :

It is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at

the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at

inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other

evidence.

To sum up, there must be substantive evidence against the person who is sought to be summoned u/s 319 Cr.P.C. and as such a person is not

to be summoned merely because his name has been mentioned belatedly or as a result of after-thought or out of the over-zealousness on part of

the complainant to get all the members of a family or his foes arraigned as accused for being tried as such along with others who are already

arraigned before the court. The niceties may not be gone into in details yet the order must be based upon a proper application of judicial mind by

the court. The personal liberty of a person in a democratic set up where rule of law is to prevail is one of the most important rights. Any act which

would have the consequence casting cloud over the personal liberty of a person must be taken after proper and the order of summoning a person

u/s 319 Cr.P.C. must not be based in a mechanical manner.

It is gratifying to note that learned Sessions Judge was very much alive to the preposition of law and it did not act in a mechanical or perfunctory

manner. There was proper application of mind and the application under Section, 319 Cr.P.C. was rightly rejected.