Sachinder Kaur & Ors. v. State of Punjab

ORDER The present petition has been filed for quashing of order dated

22.3.2010 (Annexure P-1) passed by JMIC, Mohali in case FIR No. 153 dated 5.4.2007 under Sections 406/498-A/494/120-B IPC registered at Police Station Phase-I, Mohali vide which applications filed by the petitioners under Sections 319 and 311 Cr.P.C. have been dismissed. Notice of motion was issued on 17.5.2010 and notice regarding stay was also ordered. Petitioner No.2 while appearing in person submits that the impugned order is violative of the provisions of Section 319 Cr.P.C which empowers Court to summon any person as a witness at any stage of inquiry or trial but the observation of the lower Court that the application of the complainant is premature, is without jurisdiction and has resulted into failure to exercise the jurisdiction in proper manner. The petitioner further submits that the lapse on part of the prosecution in not producing evidence promptly, cannot be a ground to deny substantial justice to the complainant. Learned counsel for the State submits that neither any statement under Section 161 Cr.P.C. was recorded nor any witness figured in the Crl.Misc. No.M-14479 of 2010 [2] challan. As per allegations of the complainant, the marriage took place on

21.1.2006 and FIR was registered on 5.4.2007 which shows that the complainant had knowledge about the alleged incident at the time of registration of FIR but neither it was disclosed to the police nor it was mentioned in the complaint and moreover the trial has not yet started and the prosecution has not led any evidence regarding the alleged occurrence and the applications are premature as no evidence has been led by the prosecution regarding the alleged occurrence. I have heard the petitioner in person as well as learned counsel for the State. In this case, an application under Section 319 Cr.P.C. for summoning of additional accused was moved by the complainant. As per case of the complainant, he had no knowledge about the name of the accused, the complainant wants to summon through this application. Even in the complaint submitted to SSP, Mohali, nothing was mentioned and the police has also not named the accused in the FIR. Only through this application, the complainant came to know about the name of the accused and said application was moved. Another application was moved under Section 311 Cr.P.C. for summoning of additional witnesses. Notice in both the applications were issued to the accused who have also filed reply and denied the facts as mentioned in the application. The JMIC, S.A.S.Nagar, Mohali dismissed both the applications on the ground that the trial has not yet started and the prosecution has not led any evidence regarding the alleged occurrence and the application was premature. Crl.Misc. No.M-14479 of 2010 [3] Section 319 Cr.P.C. is reproduced as under:-

319. Power to proceed against other persons appearing to be guilty of offence. (1) where, in the course of any 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 which he appears to have committed. (2) where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) where the Court proceeds against any person under sub- Section (1) then-- (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” The Hon'ble Supreme Court in Michael Machado and Crl.Misc. No.M-14479 of 2010 [4] another Vs. Central Bureau of Investigation and another 2000 (2) RCR (Crl.) 75 (SC) has observed as under: “ 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, 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. But even then, what is conferred on the Court is only to discretion as could be discerned from the 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 Crl.Misc. No.M-14479 of 2010 [5] 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.” Although the Court can summon any witness at any time during inquiry or trial but at this stage, there is no evidence led by the prosecution as even in the complaint, name of the accused was not mentioned. There was nothing mentioned of the accused in the FIR and as such there is no evidence on record which is relevant for summoning of witnesses or the accused. In absence of any evidence available on record or adduced by the prosecution, neither the witness nor the accused can be summoned. Learned JMIC has rightly dismissed the applications being premature. There is no merit in the contentions raised by the learned counsel for the petitioner and the petition being devoid of any merit is hereby dismissed. Dated: 30.6.2010 raghav (DAYA CHAUDHARY) JUDGE