Punjab-Haryana High Court
Narinder Singh vs State Of Punjab And Others on 9 July, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Rev.No.1658 of 2009 (O&M)
Date of decision : 9.7.2009
Narinder Singh
....Petitioner
Versus
State of Punjab and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr.Parampreet Singh Paul, Advocate
for the petitioner.
.....
MAHESH GROVER, J.
This is a petition assailing the order by which the trial Court refused to exercise its power under Section 319 Cr.P.C. to summon the accused (respondent No.4), who was named in the application moved before it.
It is the case of the petitioner that in the statement of the complainant recorded before the Court the name of respondent No.4 was categorically mentioned and she was also named in the FIR, but was not challaned by the police. It is contended by the learned counsel for the petitioner that there was sufficient material before the trial Court to prompt it to exercise its power under Section 319 Cr.P.C. to summon the said accused person.
After hearing the learned counsel for the petitioner and perusing the impugned order, I am of the opinion that the present petition is without any merit and deserves to be dismissed. The law Crl. Rev.No.1658 of 2009 (O&M) -2- pertaining to summoning of accused under Section 319 Cr.P.C. is by now amply clear. The Hon'ble Supreme Court in Lok Ram v. Nihal Singh 2006(2) RCR (Criminal) 707 has reiterated as under :-
(i) Power under section 319 Cr.PC can be exercised by the Court suo motu or on an application by someone including accused already before it.
(ii) The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case.
(iii) 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.
(iv) A person named in FIR, but not charge sheeted can also be added to face trial only on basis of evidence adduced before court and not basis of materials available in charge sheet or in case diary.
(v) Trial Court has jurisdiction to add a person as accused at any stage of proceedings - It will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commence - This is by virtue of legal fiction created by Section 319(4)(1)(b).
(vi) There is no compelling duty on court to proceed against other persons merely on the ground that some evidence had come on record implicating the person sought to be added as an accused - Order is to be passed mechanically."
The Supreme Court has more or less reiterated the aforesaid position of law in Sarabjit Singh & Anr. v. State of Punjab & Anr. 2009(3) RCR (Criminal) 388 wherein it has been observed as under :-
Crl. Rev.No.1658 of 2009 (O&M) -3-
"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.
18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of Crl. Rev.No.1658 of 2009 (O&M) -4- conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. 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 extraordinary case and
(ii) a case for sparingly exercise of jurisdiction, would not be satisfied."
The facts of the case in hand make it clear that the material before the trial Court cannot fall within the ambit of 'compelling reasons' on the basis of which action could be taken against respondent No.4. Besides, the trial court on the perusal of evidence before it had categorically found that it is not a case where the power under Section 319 Cr.P.C. should be exercised in favour of the petitioner.
Dismissed.
9.7.2009 (MAHESH GROVER) JUDGE dss