Sunita And Anr vs State Of Haryana And Another
2025 Latest Caselaw 2852 P&H

Punjab-Haryana High Court

Sunita And Anr vs State Of Haryana And Another on 3 March, 2025

                                      Neutral Citation No:=2025:PHHC:029706




203        IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                   CRR-811-2020
                                                   Date of decision: 03.03.2025

SUNITA AND ANOTHER
                                                                ...PETITIONERS
                          V/S

STATE OF HARYANA AND ANOTHER
                                                            ...RESPONDENTS

CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present:     Mr. Sankalp Gehlawat, Advocate for
             Mr. Dev Kaushik, Advocate for the petitioner
                                               petitioners.
             Mr. Vikas Bhardwaj, AAG, Haryana.
             Mr. Rakesh Dhiman, Advocate for respondent No.2.
                   ****

HARPREET SINGH BRAR,
               BRAR J. (ORAL)

1. Present revision petition has been preferred against the impugned

judgment dated 13.01.2020 passed by learned Additional Sessions Judge,

Jhajjar, whereby the order passed by learned Judicial Magistrate Ist Class,

Jhajjar has been dismissed and the application und under Section 319 Cr.P.C. for

summoning the petitioners as additional accused has been allowed.

2. Brief facts of the present case are that on 09.10.2016 at about 04

O'Clock, an altercation took place between the complainant and petitioners

along with co-accused.

accused. Due to which, on the same day at about 9:45 PM, all

the three accused came to the complainant nt with a Jeli, lathi and stone and tried

to kill the complainant. Hence, the FIR (supra) ( ) was registered.

3. In consequence of the FIR (supra (supra) and after completion of the

investigation by the concerned police, final report under Section 173 Cr.P.C.

was presented esented in the learned trial Court against co co-accused but not against the

present petitioners.

petitioner . The learned trial Court framed charges against the co co-

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accused. After the partial cross-examination of PW PW-1 i.e. injured/complainant,

the prosecution moved an application application under Section 319 Cr.P.C. before the

learned trial Court for summoning the petitioner petitioners as additional accused and the

same was dismissed vide impugned order dated 19.02.2018. Thereafter, the

complainant filed a petition before learned Additional Se Sessions Judge, Jhajjar,

whereby the order passed by learned trial Court was set aside and the

application filed under Section 319 Cr.P.C. was allowed. Aggrived by the

same, the petitioners have approached this Court by way of filing the instant

revision petition.

ition.

4. Learned counsel for the petitioners inter alia contends that the

FIR (supra)) was registered on the complaint made by Jagdish on 10.10.2016 10.10.2016,

perusal of which, clearly indicates that no specific injury has been attributed to

either of the petitioner. Learned counsel further contends that the narration as

given in the FIR (supra) ( ) is that all three accused have caused injuries on the

person of the complainant-Jagdish.

              complainant     ish. The names of two eye
                                                    eye-witnesses namely,

Varinder alias Binder and Rajes Singh were also mentioned in the FIR (supra)

itself, as they had witnessed the alleged incident. He submits that statement of

Varinder alias Binder was recorded under S Section 161 Cr.P.C. by the

investigating officer, which is available on record as Annexure P P-6. A perusal

thereof clearly indicates that the petitioners were never present at the place of

incident and the main accused, namely, Varinder alias Billu had already

caused injuries juries on the person of complainant-Jagdish, complainant Jagdish, who was apprehended

by the eye-witness witnesses.. As such, it is clearly evident that the petitioners have not

participated in the alleged incident. Additionally, complainant complainant-Jagdish, while

appearing as PW-1 PW on 12.07.2017 i.e. after nine months of the incident, has

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made material improvements in his deposition and assigned specific role and

injuries to the petitioners as well. The complainant was duly confronted in his

cross-examination examination in this regard.

regard. He further su submits that the investigating

agency, after thoroughly examining the material available on record record, has

declared the petitioners as innocent. Furthermore, the learned trial Court has

refused to exercise power under Section 319 Cr.P.C. and there is nothing

available on record to show that the impugned order passed by learned

Additional Sessions Judge, Jhajjar while exercising his power under revisional

jurisdiction satisfies the test est of having more than prima facie case as culled out

by the Constitutional Bench of the Hon'ble Supreme Court in Hardeep Singh

Vs. State of Punjab, SC 2014(1) RCR (Criminal) 623

623. He submits that no

reasoning satisfying the objective standards of reason and justice has been

provided, while passing the impugned order. The impugned order has been

passed in a mechanical manner without adverting to the factual matrix of the

present case.

5. Per contra, learned earned State counsel assisted by learned counsel for

respondent No.2 opposes the prayer made by the petitioners and submits that

the petitioners were named in the FIR (supra (supra) and the deposition of the

complainant-Jagdish Jagdish as PW-1 PW 1 is duly corroborated by the medical evidence evidence.

Further, it is immaterial if complainant is not able to narrate the exact

sequencee of the events by pin pointing the injuries caused by each accused.

Furthermore, reliance of the petitioners on the statement of eye eye-witness i.e.

Varinder alias Binder Singh recorded under Section 161 Cr.P.C. is totally

misplaced.. Lastly, the trial Court has has failed to assign any reasoning while

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refusing to exercise power under Section 319 Cr.P.C. and has only mentioned

that the bona fide of the investigating agency cannot be suspected.

6. I have heard the learned counsel for the parties and perused the

material aterial available on record. It transpires that the investigating agency, after

thorough examination of the material available on record, has declared the

petitioners as innocent and in the FIR (supra), no specific injury or overt act

has been attributed to the petitioners.

7. Mere statement of the prosecutrix or complainant complainant, which is not

substantiated by any credible material, cannot be a ground to invoke the

discretionary and extraordinary power of this this Court to summon an additional

accused under Section 319 Cr.P.C. In the absence of any material suggesting

existence of more than prima facie case available during the course of trial of

an offence, the Courts ought to refrain themselves from exercising its

discretionary and extraordinary power under Section 319 Cr.P.C. The

Constitution Bench of the Hon'ble Supreme Court in Hardeep Singh's case

(supra) has held that the power under Section 319 Cr.P.C is a discretionary

and extraordinary power. It is to be be exercised only on the basis of the material

available before the Court during the trial and not because the Magistrate or

the Sessions Judge is of the opinion that some other accused/person may also

be guilty of committing that offence. Speaking through Justice B.S. Chauhan,

the following was observed :

"105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a

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person from the evidence led before the court that such po power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court, not necessarily tested on the anvil of cross-examination, cross examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima prima-facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if "it appears from the evidence that any person not being the accused accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the Court acting under Section 319 C Cr.P.C.

to form any opinion as to the guilt of the accused."

8. Subsequently, Hon'ble Supreme Court in the case of Sagar Vs.

State of Uttar Pradesh and another Criminal Appeal No. 397 of 2022

(Arising out of SLP(Crl) No.7373 of 2021), referring to Hardeep Singh

(supra) made the following observations:

"The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed circumstances above has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction."

9. Recently Hon'ble Supreme Court in case of Juhru & Ors. Versus

Karim & Anr. 2023 AIR (Supreme Court) 1160 observing the scope of

section 319 Cr.P.C held that:

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"It is, thus, manifested from a conjoint reading of the cited decisions that power of summoning under Section 319 Cr.P.C. is not to be exercised routinely and the existence of more than a prima prima-facie case is sine quo non to summon an additional accused. We may hasten to add that with a view to prevent the frequent misuse of ppower to summon additional accused under Section 319 Cr.P.C., and in conformity with the binding judicial dictums referred to above, the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discoura discouraged and the trial Court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material is, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the the absence of any credible evidence, the power under Section 319 Cr.P.C. ought not to be invoked."

10. In view of the discussion made hereinabove, the present revision

petition is allowed in the following terms: -

(i) The impugned order dated 13.01.2020 passed by learned

Additional Sessions Judge, Jhajjar Jhajjar, vide which, the petitioners

have been summoned as additional accused is hereby, set aside,

along with all consequential proceedings.

(ii) Nothing observed herein shall be construed as a comment on

thee merits of the case at hand, thereby, causing prejudice to the

case of the prosecution.

(HARPREET HARPREET SINGH BRAR BRAR) March 03, 2025 5 JUDGE manisha

(i) Whether speaking/reasoned Yes/No

(ii) Whether reportable Yes/No

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