Smt.Shakuntala & Ors. v. State of Haryana

FIR (Annexure P3) and reads as under:- “Stated that I am r/o village Jharsa and working as Engineer in a private company. Today on 17.4.03 we had called a commission for measurement of our passage. At about 11.30 a.m. we were getting our passage measured and Kabi Ram was also present there. Meanwhile, accused Devinder s/o Mam Singh, Jai Narain s/o Ram Singh, Joginder s/o Ram Singh came there and were holding iron rods (saria), lathi and ballam in their hands. Devinder gave an iron rod blow on right hand side of my head and Jai Narain, who was holding brick in his one hand gave a brick blow at my back and tried to give a ballam blow on my head, which he was holding in his second hand, however, I stopped it from my right hand and the same hit me on my fingers and Joginder who was holding brick in his hand gave a brick blow at my back. After that Krishna w/o Devinder Singh also came there and gave lathi blow on my back. After that Brij Lal s/o Bhan Singh, Surender s/o Raghubir Singh, Kuldeep s/o Bramjeet CRM No.M-19886 of 2008 2 Singh, Ram Singh s/o Ganga Ram, Jai Bhagwan s/o Ram Singh, Parveen w/o Brij Lal, Shakuntala w/o Bahramjeet, Santra w/o Jai Narain, Mohit s/o Brij Lal and 2-3 other persons of Silokhera whose names and address I don't know, came there one after the other and were holding lathi, ballem, Jaili and pharsa, and gave severe beatings to my brother Jai Kiran, Krishan and my father Ram Lal. They will tell about their injuries themselves. When I shouted “Maar Diya Maar Diya” then Dinesh s/o Desh Raj Raghav, r/o Palra and Amarnath, member panchayat came there and rescued us otherwise they would have killed us. They have also threatened us for future. Sd/- Baldev.”

2. On the basis of aforesaid allegations, the present case was registered against the accused, vide FIR No.206 dated 19.4.2003 (Annexure P3), on accusation of having committed the offences punishable under Sections 323, 324, 325 and 506 read with section 34 IPC by the police of Police Station Sadar Gurgaon.

3. During the course of investigation, the police found petitioners Shakuntala w/o Brahamjit, Sumitra w/o Jai Narain, Smt.Krishna w/o Devinder, Smt.Parveen w/o Brij Lal and Jai Narain s/o Ram Singh as innocent, did not send them for trial and submitted the final police report under section 173 Cr.PC against the remaining 20 accused.

4. Having completed all the codal formalities and framing the charges, the case was slated for evidence of the prosecution. The prosecution, in order to substantiate the charges framed against the accused, examined complainant Baldev Singh (PW1), who has named and stated that the present petitioners were also responsible for the commission of the crime. Thereafter, in the wake of application (Annexure P5) filed by the complainant under section 319 Cr.PC, the trial Magistrate summoned the present petitioners to face trial alongwith other accused, by virtue of impugned order dated 29.2.2008 (Annexure P7).

5. Aggrieved by the impugned order of the trial Magistrate, the petitioners filed the revision petition, which was dismissed by the Additional Sessions Judge (Fast Track Court), Gurgaon, vide order dated 26.7.2008 CRM No.M-19886 of 2008 3 (Annexure P9).

6. The petitioners still did not feel satisfied and filed the present petition for quashing the impugned orders of the Courts below, invoking the provisions of section 482 Cr.PC.

7. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be partly accepted.

8. As is evident from the record that as per version of the FIR (Annexure P3), the accused persons did not allow the measurement to take place. Meanwhile, accused Devinder, Jai Narain and Joginder armed with iron rod, lathi and ballam, came there and caused injuries to the complainant party, while the remaining accused gave brick bats. That means, no role, much less specific, was attributed to petitioners (ladies) No.1 to 4 in this context.

9. The complainant, while appearing as PW1, has entirely changed his earlier version and made considerable improvements as regards the role attributed to petitioner Nos.1 to 4 is concerned. He was duly confronted with the contents of his earlier statement in this regard. Moreover, even only very vague allegations are assigned to petitioner Nos.1 to 4 that they caused brick bat injuries to the complainant party. No specific role is attributed to them. Meaning thereby, there was no cogent evidence on record against them, warranting their summoning.

10. The Hon'ble Apex Court in case M/s Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others AIR 1998 Supreme Court 128 has observed (para 28) as under:- “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has CRM No.M-19886 of 2008 4 applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

11. In order to summon any accused under section 319 Cr.PC, the Court is not merely required to take note of the fact that the name of a person, who has not been named as an accused in the final police report has surfaced during the trial, but at the same time, the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 Cr.PC entails a de novo trial and re- examination of the witnesses may prejudice the prosecution and delay the trial, the trial Court has to exercise such discretion with great care and perspicacity. The power under this section is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. The jurisdiction under this Section rests on the principle whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his CRM No.M-19886 of 2008 5 conviction. The only allegations against petitioner Nos.1 to 4 are that they gave brick bats. How, in what manner, they caused injuries on which part of the body of whom, is totally lacking. Moreover, their participation in the occurrence is specifically not corroborated by medical evidence.

12. As indicated earlier, in the instant case, on the quality of the evidence adduced by the prosecution as far as petitioner Nos.1 to 4 are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure their conviction. The evidence of PW1, which seeks to connect them with the commission of offence, is even not relatable to the medical evidence. Therefore, to me, no ground for summoning them (petitioner Nos.1 to 4) under section 319 Cr.PC, who are rustic village ladies, is made out.

13. An identical question arose before the Hon'ble Supreme Court in case Sarabjit Singh & Anr. v. State of Punjab & Anr. 2009(3) RCR (Criminal) 388 and this Court in case Hukam Chand and another v. State of Haryana and another 2007(3) RCR(Criminal) 141. Having interpreted the provisions of Section 319 Cr.PC, it was ruled that “a person should not be summoned to face trial as an additional accused if there is no evidence, which would reasonably lead to conviction of person sought to be summoned.” Thus, the arguments of the learned counsel that petitioners No.1 to 4 have been wrongly summoned without any cogent evidence against them, have considerable force. The contrary contentions of the learned counsel for the respondents “stricto sensu” deserve to be and are hereby repelled and the law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand.

14. Be that as it may, but there are direct allegations in the FIR as well as in the statement (Annexure P4) of complainant Baldev Singh (PW1) that petitioner No.5 Jai Narain was armed with ballam in his hand. He inflicted injury on the back side of his head, which is a vital part. The prosecution version is consistent as CRM No.M-19886 of 2008 6 regards the role of petitioner No.5 is concerned. Therefore, to my mind, the trial Court has rightly summoned him to face trial alongwith his other co-accused.

15. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the case, the present petition is partly allowed. Consequently, the impugned orders (Annexures P7 and P9) summoning petitioner Nos.1 to 4 as accused are set aside, but maintained in regard to summoning of petitioner No.5-Jai Narain, in the obtaining circumstances of the case.

16. Needless to state that nothing recorded herein above would reflect on the merits of the case, in any manner, as the same has been so observed for a limited purpose of deciding the instant petition.

29.9.2010 (Mehinder Singh Sullar) AS Judge