Subhash vs State of Haryana and others

Nirmaljit Kaur, J.—This is a revision petition against the Order dated 16.02.2012 passed by the Judicial Magistrate Ist Class, Kaithal, vide which, the application u/s 319 of the Cr.P.C has been dismissed. While praying for setting aside the Order, learned counsel for the petitioner contended that a specific role has been attributed to the respondents and therefore, they should have been summoned u/s 319 of the Cr.P.C.

Heard.

Two persons sought to be summoned are Jagir Singh and Sanju. Jagir Singh is 90 years old man. He has three sons, namely, Mohan, Sohan and Sanjive. Mohan and Sanjive are already facing trial. The allegation in the complaint against the present respondents-Jagir Singh and Sanju is the same as in the statement of PW-2 Subhash-complainant. The said statement is a repetition of the allegation in the FIR. The respondents have already been found innocent on the basis of the investigation conducted in pursuance to the said FIR. There was no other evidence before the trial Court except the statement which may have enable the Court to come to the conclusion that the same was sufficient for presuming that it might lead to conviction of the persons sought to be summoned. As stated above, Jagir Singh is 90 years old man, whereas, Sanju is the son of Pritam. Pritam is already facing trial.

Reliance has been placed on the judgment of Hon''ble the Apex Court rendered in the case titled as Harbhajan Singh and Another Vs. State of Punjab and Another, to state that the evidence before the trial Court was important for summoning the present respondents.

However, the judgment rendered in the case of Harbhajan Singh (supra), does not help the petitioner as in the present case, there is no other evidence except the statement of PW-2 Subhash-complainant which is only the repetition of the FIR and the respondents have already been found innocent on the basis of the same. The said evidence, in itself, as discussed above, is not sufficient to summon the respondents.

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.

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. Para 17 of the said judgement reads as under:-

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 Vs. Puthur Rami Reddy and Another, , 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 319 contemplates that evidence of witnesses given in Court..."

An order u/s 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.

Thus, there is no ground to interfere in the well reasoned judgment dated 16.02.2012 passed by Judicial Magistrate Ist Class, Kaithal, vide which, the application u/s 319 of the Cr.P.C has been dismissed.

In view of the above, the present petition is dismissed.