January 28 v. State of Haryana

Mr.Arvind Singh, Advocate, for the petitioner Mr. Raja Sharma, Assistant Advocate General, Haryana *** GURDEV SINGH, J. This revision petition has been preferred by Dinesh, petitioner, against the order dated 18.9.2009 passed by the learned Additional Sessions Judge, Karnal, on the application of the prosecution filed under Section 319 of the Code of Criminal Procedure (hereinafter referred to as “the Code”), summoning him as an additional accused to stand his trial for the offence under Section 201/34 of the Indian Penal Code (hereinafter referred to as “IPC”). The facts, in brief, are that on the application of Zile Singh, Crl. Revision No. 2624 of 2009 {2} father of Nisha Devi-deceased, FIR No. 91 dated 18.2.2009 was registered against the petitioner and others under Sections 302, 304-B and 201/34 IPC. It was narrated in that application that Nisha Devi was married to Amar Nath on 16.2.2009. The said Amar Nath, his father, Hari Ram and the petitioner killed her due to non-fulfillment of the demands of dowry. After investigation, the challan was presented in the Court only against Amar Nath under Sections 306 and 201 IPC. The name of the petitioner, Hari Ram and Dhanpati were mentioned in column No. 2 of that challan. Amar Nath was charged for the offence under Section 306 IPC, to which he pleaded not guilty. In the course of trial, statements of Zile Singh- complainant, Rajesh and Surinder Singh were recorded. Thereafter, application under Section 319 of the Code was filed by the prosecution for summoning the petitioner, Hari Ram and Dhanpati as additional accused to stand their trial along with Amar Nath, accused. That application was decided, vide the aforesaid impugned order. Notice of the revision was given to the respondents. I have heard learned counsel for the petitioner and learned State counsel for the respondent. It has been submitted by the counsel for the petitioner that the order passed by the learned Additional Sessions Judge cannot be sustained as no evidence has been produced during the trial on the basis of which the conviction of the petitioner may be recorded. The power conferred by Section 319 of the Code is extra ordinary power required to be exercised very sparingly, if compelling reasons exist. Merely on the ground that some of the witnesses have named the accused, it cannot be held that such a power should be exercised. The statements made by the witnesses against Crl. Revision No. 2624 of 2009 {3} the petitioner amounts to hearsay evidence as none of them has stated that he had seen the petitioner taking the dead bodies of the deceased to the cremation ground for cremating the same. Therefore, the order in revision is liable to be quashed. In support of his contentions he has placed reliance on Kailash vs. State of Rajasthan and another 2008(2) RCR (Criminal)

200. On the other hand, it was submitted by learned State counsel that evidence has already been produced in the trial court for proving that the present petitioner along with the other accused destroyed the evidence of the commission of the offence under Section 306 IPC in order to screen himself of the said offence. From that evidence, it appears that the petitioner committed offence under Section 201 IPC. While exercising power under Section 319 of the Code judiciously, the petitioner, Aman Nath and Dhanpati have been summoned by the Court to stand their trial for the offence under Section 201 IPC. As per Section 319 of the Code, where, in the course of a trial, 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. While interpretting that Section, it was held by the Apex Court in Kailash’s case (Supra) that “a glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which person could be tried together with the accused who are also being tried. The key words in this Section are “it appears from the evidence”….. “any person”…. “has committed any offence”. It is not, therefore, that Crl. Revision No. 2624 of 2009 {4} merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words “it appears” are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands.” It was held in Municipal Corporation of Delhi v. Ram Krishan Rohtagi and others 1983 (1) RCR (Criminal) 73 that a power under Section 319 of the Code is an extra ordinary which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. It was also held therein that before a court exercises its discretion it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. After having discussed the proposition of law, it is to be seen whether the finding recorded by the learned Sessions Judge can be sustained? It is to be seen whether there is any likelihood of the conviction of the petitioner Crl. Revision No. 2624 of 2009 {5} on the basis of the evidence already produced during the trial. The criminal machinery in this case was set in motion by Zile Singh and it was on his application that the FIR was recorded. When he was examined during trial, he made detailed statement. So far as the present petitioner is concerned, he has stated that when they reached Gharaunda, on receiving a telephone call, they learnt that his daughter Nisha Devi and child Yash had been cremated by the accused and his family members,. They also learnt that Dhanpati, Hari Ram and Dinesh were the only persons who cremated the dead bodies. An objection was raised to that part of his statement on the ground that the same was hearsay. Objection was recorded but was not decided by the trial court. On the face of it, this statement of the complainant is hearsay evidence. However, the same is not the case, so far as the statement of Surinder Sigh is concerned. He made a categorical statement in the trial court that on 16.2.2009, he was going from his house to village Gharaunda to deliver the wedding card of his sister and saw Amar Nath –accused coming from the front side on a motor cycle. At that time Hari Ram was sitting on the pillion seat and Nisha Devi was sitting in between. Another motor cycle was being driven by Dinesh-petitioner and Dhanpati was sitting on the pillion seat thereof. When these people crossed the G.T.Road, he called out for them but they did not stop and went to the cremation ground. He followed them. When they reached near the cremation ground, he saw all these accused carrying Nisha Devi and her child and their dead bodies were cremated. When he prevented them from doing so, they chased him while holding the dandas in their hands. There is every likelihood of the conviction of the petitioner Crl. Revision No. 2624 of 2009 {6} under Section 201 IPC on the basis of this evidence, so recorded during the trial. The extra ordinary power conferred by Section 319 of the Code has been judiciously exercised by the learned Additional Sessions Judge. There were compelling reasons for summoning this petitioner, in view of the above said evidence. From my above discussion, I conclude that the impugned order does not suffer from any illegality neither it is incorrect nor it can be said that the propriety required that such an order should not have been passed. Therefore, the same cannot be set aside while exercising the revisional jurisdiction. Revision is dismissed accordingly.

28.1.2010 paramjit (GURDEV SINGH) JUDGE Crl. Revision No. 2624 of 2009 {7}