Hasin and Another vs State of Haryana

Alok Singh, J.—All these petitions bearing CRR No. 1132 of 2010, CRR No. 1128 of 2010, CRR No. 1097 of 2010, CRR No/1068 of

2010, CRR No. 1280 of 2010 and CRR No. 3010 of 2010 have arisen from the common impugned order dated 29.3.2010 passed by

Additional Sessions Judge, Nuh, thereby summoning the revisionists u/s 319 of the Code of Criminal Procedure to face the trial for an offence

punishable under Sections 148/149/323/324/325/302/102-B/212 of the Indian Penal Code pursuant to FIR No. 321 dated 6.9.2008.

Prosecution story inter alia is that at about 11.30 a.m. on 6.9.2008 Mujaffar, complainant with Samim, deceased Kafil, Yusuf, Irfan and Akbar

were sitting in lawn of Y.M.D. College, Nuh. In the meantime Rahis, Samim, Abbas and Saikul residents of village Muradbas, Nauman and

Aslam, residents of village Meoli, Mehender, Haseen, Ja-hid, Abbas, Sanaulla, Tarik and Khalid, residents of village Adbar, Wahid Kasai, Sahid,

residents of Nuh, Aslam, Jahid, residents of village Salmba, Sa-jid, resident of village Kot and Arif, resident ofvil-lage Neemkhera in furtherance of

their common object came armed with dandas, iron rods, knives and pistols. The complainant went to office of Principal where Javed, Principal

and Imtiyaj Ahmed, Lecturer Hindi were present. He made complaint to them and told that aforesaid accused came to kill him (complainant) and

others. Thereupon Principal asked the complainant to keep on sitting in the lawn and promised that none could touch them. When complainant

reached in the lawn Rahis and Nauman caught Samim, deceased and Shamim gave knife blow to him. Aslam gave a knife blow in thigh of

complainant. Khalid gave an iron rod blow to Kafil. Sanaulla took out one country made pistol and hit on back of right hand of Kafil. When Soyab

son of Asgar intervened all the assailants inflicted injuries to many students. In the meantime Kasim and many other students from the college

collected. They were shifted to Government Hospital, Nuh. Complainant and Soyab were admitted there, and medico legally examined, whereas

Samim was referred to Government Hospital, Gurgadn. He succumbed to the injuries oh the way and brought back in Government Hospital, Nuh

where autopsy was conducted. On statement of complainant Mujaffar Khan instant FIR No. 321 dated 6.9.2008 under Sections

148/149/323/324/325/302/212/120-B IPC and 25 of the Arms Act, 1959 was recorded at Police Station Nuh.

After investigation, challan was submitted before the Magistrate and thereafter case was committed to the Court of Session vide order dated

24.3.2009. Vide order dated 2.12.2009, charges to face trial under Sections 148/323/324/326/302/149 read with Section 120-B IPC were

framed against all the accused, however, charge u/s 25 of the Arms Act was framed against accused Samim alias Rashid. Mujaffar Hussain,

complainant was examined as PW3. After the examination of Mujaffar Hussain, application was moved to summon the present revisionists u/s 319

Code of Criminal Procedure. which was allowed vide order dated 29.3.2010.

I have carefully heard learned Counsel for the parties and have examined the record.''

Mujaffar Hussain has made following statement on oath before the Court:

In the month of September, 2008 I was the student of B.A. Final of Yasin Meo Degree College, Nuh. On 6.9.2008 at about 11.30 a.m. 18 boys

and two lecturers of Yasin Meo Degree College, Nuh including some outsiders, namely Samim, Saikul Abbas, Rahis, Haseen, Tarik, Sana, Hulla,

Sahid, Mahender, Jahid, residents of vilalge Salambha, Wahid r/o Nuh, Sajid r/o village Kot, Arif r/o village Neemk-hera, Aslam and Nauman r/o

village Meoli, Imtiraz Lecturer came there when I alongwith Kafeel, Samim, Akbar and Yusuf were sitting in the lawn of college. The above named

persons were having knife and country made pistols. The attacked on us. Rahis and Noman caught hold Shamim (since deceased) and accused

Shamim gave a knife blow to Shamim in front the office of Principal of the college. Accused Aslam gave a knife blow on my left thigh. Thereafter,

my uncle and grand father came in the college and we were shifted to CHC Nuh. I was admitted in the hospital at Nuh and Shamim was referred

to General Hospital Gurgaon. I cannot tell who else caused injuries to whom. (At this stage, learned PP states that the witness is suppressing the

truth so he may be declared hostile and requested to cross examine him. Heard. Allowed).

Since Mujaffar Hussain was declared hostile, thereafter he was cross- examined by the Public Prosecutor. During the cross-examination, Public

Prosecutor tried to prove contents of FIR as well as contents of the statement recorded u/s 161 Code of Criminal Procedure

Statement of Mujaffar Hussain on the cross-examination by the Public Prosecutor is as under:

Police came in CHC Nuh and my statement was recorded. I have seen my signature on Ex.PA. Its mine, It is correct that police recorded my

statement Ex. PA on my dictation. It is also correct that statement Ex.PA was read over to me and I signed the same after admitting the same to be

correct. It is correct that I have stated before the police that orally I made complaint to Principal Javed and lecturer of Hindi Imtiaz Ahmed that

these boys had come for assaulting us. I have stated before the police in my statement Ex.PA that Principal asked us to remain sitting there and

assured that no one will touch you. I also stated to the police that when 1 reached in the lawn accused Samim @ Rasid s/o Hamid, r/o

villageMurad-abas was having a knife and he caused injury on the stomach of Samim by knife. I also stated to the police in my statement Ex.PA

that Khalid gave a saira blow to Kafile but he saved him. I also stated to the police in my statement Ex.PA that Sana Ulla after taking out a country

made pistol from his dub hit the same butt wise on the right hand of Kafil. I had also stated to the police in my statement Ex.PA that Rahis after

taking out a knife from the pocket of his pant inflicting it on right hand finger of Soyab, when Soyab tried to save us. I had also stated to the police

in my statement Ex.PA that in the meantime, Kassam son of Ayb Khan and many students of the college had also come at the spot and on seeing

them the accused fled away from there. I had also stated to the police in my statement Ex.PA that later on. Samim died due to injuries suffered in

the occurrence and that the occurrence took place with conspiracy of Javed Principal and Imtiaz Hindi Lecturer of YMD College.

Perusal of the statement i.e. examination-in-chief and cross examination by the Public Prosecutor would lead this case nowhere. I am unable to

find out from the statement of Mujaffar Hussain what was the specific role played by the revisionists. Merely asking question about the contents of

the FIR of about the statement recorded u/s 161 Code of Criminal Procedure would not serve any purpose.

In the opinion of this Court, power u/s 319 Code of Criminal Procedure must be exercised with great care and caution. Vague, ambiguous or

casual statement made by the prosecution witness should not be made basis to summon the person to face triatunder Section 319 Code of

Criminal Procedure Power u/s 319 Code of Criminal Procedure ordinarily shall be exercised when from the evidence available on the record it

appears to the Court that person sought to be summoned is also involved in the offence and evidence available on the record if stands unrebutted

would lead to the conviction of the person sought to be summoned. Mere strong suspicion is not enough to summon the person as accused.

My view is fortified by the judgments of the Hon''ble Apex Court in the matters of Ram Pal Singh and Ors. v. State of U.P. and Anr. 2009 (2)

RCR (Criminal) 131, Ram Singh and Ors. v. Ram Niwas & Anr. 2009 (3) RCR (Criminal) 501 and Suman v. State of Rajasthan and Anr. 2010

(1) CCC 269 (S.C.).

Hon''ble Apex Court in the matter of Ram Pal Singh and Ors. v. State of U.P. and Anr. 2009 (2) RCR (Cri) 131 in para Nos. 15 and 16 has

observed as under:

The ingredients of Section 319 are unambiguous and indicate that where in the course of inquiry into, or trial of, an offence, it appears from the

evidence that any person not being the accused has committed any offence, for which such person could be tried together with the accused, the

Court may proceed against such person for the offence he has committed.

All that is required by the Court for invoking its powers u/s 319 Code of Criminal Procedure is to be satisfied that from the evidence adduced

before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused.

It is also clear that the discretion is left to the Court to take a decision on the matter.

Hon''ble Apex Court in the matter of Ram Singh and Ors. v. Ram Niwas and Anr. 2009 (3) RCR (Cri) 501 in para No. 17 has observed as

under:

The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case

would be sufficient to exercise the court''s jurisdiction u/s 319 of the Code. We have noticed hereinbefore the importance of the word ''appears''.

What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would

lead to conviction of the persons sought to be added as accused in the case.

Hon''ble Apex Court in the matter of Suman v. State of Rajasthan and Anr. 2010 (1) CCC 269 (S.C.) in para No. 11 has held as under:

Section 319 Code of Criminal Procedure applies to all the Courts including the Sessions Court. It empowers the Court to add any person, not

being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused

and direct him to be tried along with other accused If such person is not attending the Court, he can be arrested or summoned. If he is attending

the Court, although not under arrest or upon a summons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence

which he appears to have committed. Sub-section (4) lays down that where the Court proceeds against any person under Sub-section (1), the

proceedings in respect of such person shall be commenced afresh and with nesses are reheard. A reading of the plain language of Sub-section (1)

of Section 319 Code of Criminal Procedure makes it clear that a person not already an accused in a case can be proceeded against if in the course

of any inquiry into or trial of an offence it appears from the evidence that such'' person has also committed any offence and deserves to be tried

with other accused. There is nothing in the language of this Sub-section from which it can be inferred that a person who is named in the FIR or

complaint but against whom charge- sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or

trial of any offence the Court finds that such person has committed any offence for which he could be tried together with the other accused.

In the present matter statement of Mujaffar Hussain does not indicate specific and clear role played by each of the revisionists. Rather Mujaffar

Hussain has stated that he cannot state who else caused injuries to whom.

For the recorded hereinabove, present petitions stand allowed. Order impugned is set aside.