Kashmir Kaur And Another vs State Of Punjab on 7 February, 2010

[Cites 2, Cited by 2]

Punjab-Haryana High Court

Kashmir Kaur And Another vs State Of Punjab on 7 February, 2010

Bench: Nirmaljit Kaur

CRR No. 3404 of 2010                                                          1



    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH
                                       --

                                CRR No. 3404 of 2010
                                Date of decision: 07.02.2011


Kashmir Kaur and another                               ........ Petitioners

            Versus

State of Punjab                                         .......Respondent(s)



Coram:      Hon'ble Ms Justice Nirmaljit Kaur
                     -.-

Present:    Mr. P K Gupta, Advocate
            for the petitioner

            Mr. K S Pannu, DAG, Punjab
                 -.-
      1.    Whether Reporters of local papers may be
            allowed to see the judgement?

      2.    To be referred to the Reporter or not?

      3.    Whether the judgement should be reported in
            the Digest?

Nirmaljit Kaur, J. (Oral)

This is a revision against the order dated 11.11.2010 passed by the learned Sub Divisional Judicial Magistrate, Garhshankar, vide which the petitioners have been summoned under Section 319 Cr.P.C.

It is contended by the learned counsel for the petitioner that the petitioners were found innocent. Subsequently, they were summoned under Section 319 Cr.P.C on the basis of statement of one Paramjit Rani.

It is also not disputed that the said PW1-Paramjit Rani was not cross-examined and the petitioner have been summoned only on the basis of her examination in chief.

CRR No. 3404 of 2010 2

This Court in the case of Hukam Chand and another v. State of Haryana and another reported as 2007(3) RCR (Criminal) 141 held in para 5 as under:-

"I have heard learned counsel for the parties. Concededly, the matter was investigated by the police after the FIR had been recorded on the statement of the complainant. The petitioners had been found innocent and were placed in the Column No.II. Thereafter, during the course of proceedings, the statement of the complainant was also recorded, which in fact, was merely a reiteration of what has been stated in the FIR. No other evidence was there before the Court on the basis of which complicity of the petitioners could be established. The Hon'ble Supreme Court in a judgment reported as 2000(2) RCR (Criminal) 75 has observed as under :-

"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 the accused already arraigned. It is not enough that the Court entertained 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 as 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 CRR No. 3404 of 2010 3 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 each other persons."

For summoning under Section 319 of the Cr.P.C., there has to be some evidence before the Court which would indicate the complicity of the persons who are sought to be summoned or some material should have come on record which may prompt the court to believe that the persons so accused are likely to be involved, and their conviction is likely to result, in the eventuality of their facing the trial, and the onslaught of the evidence to be adduced by the prosecution. The mere statement, ipso facto, cannot form the basis of summoning the persons under Section 319 of the Cr.P.C."

It is evident from the order dated 11.11.2010 that no substantial evidence was recorded and the only evidence was the statement of PW1 and no finding was recorded as to whether the said averment was sufficient to come to the conclusion that the same is likely to result in conviction.

In view of the above, the order dated 11.11.2010 passed by the Sub Divisional Judicial Magistrate, Garhshanker is set aside. However, as and when, PW1 is cross examined and in case, the same is sufficient or CRR No. 3404 of 2010 4 there is more evidence, the complainant or prosecution is at liberty to file application which shall be considered and decided afresh on the basis of fresh evidence before it.

Disposed of.

(Nirmaljit Kaur) Judge 07.02.2011 mohan

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