Gurcharanjit Singh & Ors. v. State of Punjab & Anr.

Judgment

3. Nirmaljit Kaur, J. This is a revision petition against the summoning order dated

04.05.2010 passed by the Chief Judicial Magistrate, Rupnagar, vide which, the petitioners have been summoned under Section 319 Cr.P.C to face trial in case FIR No. 43 dated 03.03.2006 Sections 406 and 498-A of Indian Penal Code, registered at Police Station Ropar.

Facts of the case are that complainant's daughter got married CRR No. 1933 of 2010 2 with the son of petitioner No. 3 (Gurjit Singh alias Vicky) on 05.11.1995. After ten years of the marriage, the aforesaid FIR bearing No. 43 was lodged on 03.03.2006 under Section 406, 498-A of Indian Penal Code against husband, mother-in-law, sister-in-law and her husband. The police investigated the matter and found the petitioners to be innocent. In the challan presented by the police, it was clarified categorically that the allegations against petitioners No. 1 and 2 were found to be false and unsubstantiated as petitioner No 1 was working as Swimming Coach with the Sports Authority of India and was posted at Sangrur from the year 1997 to 2000 thereafter, was posted at Patiala from the year 2000 till 2004. Petitioner No. 2 was also found to be a Government employee working as Assistant in the office of Punjab Mandi Board who was posted at Patiala till

2004. The Police found that petitioners No. 1 and 2 stayed at Patiala and only occasionally visited their parents at Mohali. The allegations against petitioner No. 3 were also found to be false. The police after investigating the matter, presented challan only against Gurjit Singh for offence under Sections 406 and 498-A of Indian Penal Code. Thereafter, statements of complainant Naurata Singh and Dilraj Kaur were recorded. On the basis of the said statements, the present petitioners were summoned under Section 319 Cr.P.C to face trial vide order dated 25.10.2007 passed by the Chief Judicial Magistrate, Ropar. However, the aforesaid summoning order was set aside by this Court vide order dated 23.09.2008 passed in Criminal Revision No. 2443 of 2007, by observing as under:- “Since the trial Court has not apparently applied itself the relevant law and valid consideration, the impugned order CRR No. 1933 of 2010 3 cannot be sustained. The same is set aside. The case is remanded back to the trial Court for re-deciding the issue in the light of law laid down by Hon'ble Supreme Court. The counsel for the parties would be at liberty to raise any further pleas in support of their respective stands and may rely upon any precedents. The trial Court would then pass an order afresh.” Thereafter, fresh order was passed on the basis of statements of PW1 and PW2. While challenging the said impugned order, learned counsel for the petitioners submitted that the petitioners were residing separately. The only evidence before the trial Court was the statements of PW1 and PW2, which is a mere repetition of the allegations levelled in the FIR. The same are vague. It was further argued that there are material contradictions in the FIR and the statement of the complainant. The impugned order has been passed without taking into consideration the evidence during investigation on the ground that in case the statement goes un-rebutted, the petitioners are likely to be convicted. Learned counsel for the respondent No. 2 while opposing the stand, relied on the judgment of Apex Court rendered in the case of Suman v. State of Rajasthan and another reported as 2009(4) RCR (Criminal) 908 to substantiate his arguments that the process issued against the petitioners under Section 319 cannot be quashed only on the ground that even though they were named in the complaint, the police did not file charge-sheet against them. It was sufficient that a prima facie case was made out. Learned counsel for the parties have been heard. Petitioner No. 1 and Petitioner No. 2 are admittedly residing CRR No. 1933 of 2010 4 separately. Allegations have been levelled after ten years of the marriage. Petitioners No. 1 and 2 are married brother-in-law (husband of petitioner No. 2) and sister-in-law of complainant's daughter. In Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, considering the basic requirements of Section 319 of the Code, Court said: “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, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertain 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 be tried along with the already arraigned accused.” In Krishnappa v. State of Karnataka reported as 2004 (4) RCR (Criminal) 678, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused. The Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388, in para 17, observed as under:- CRR No. 1933 of 2010 5 “17. The provision of Section 319 of the Code, on a plain reading,provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined: "...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence" in Section 319 contemplates that evidence of witnesses given in Court..." An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being CRR No. 1933 of 2010 6 whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.” Hon'ble the Apex Court in the case of Brindaban Das and others v. State of West Bengal reported as 2009(1) RCR (Criminal) 672, held, in para 19 and 20, as under:- “19. The fulcrum on which the invocation of Section 319 Cr.P.C. Rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable ti not only to prove its case but to also secure the conviction of the persons summoned.

20. In the instant case, on the quality of the evidence adduced by the prosecution as far as the appellants are concerned, it is difficult to hold with any amount of certainty that the same would in all probability secure a conviction against the appellants. The evidence which seeks to connect the appellants with the commission of the offence are hearsay in nature. Section 319 Cr.P.C. Contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. The law in this regard was explained in Ram Kishan Rastogi's case (Supra) and as pointed out by Mr. Ghosh, consistently followed thereafter, except for the note of discord struck in Rajender Singh's case (supra). 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 CRR No. 1933 of 2010 7 conviction.” And in the fact of that case, the Court held in para 21 as under:- “21. Since in the present case, except for a statement in the FIR that the complainant strongly believed that the murder of her father was pre-planned and there were many conspirators involved, there is no direct evidence of the complicity of the appellants in the incident, it would not be proper to subject the appellants to trial by invoking the provisions or Section 319 Cr.P.C.” Learned counsel for respondent No. 2 has relied on the judgment rendered by the Supreme Court in the case of Suman (Supra). There is no dispute with the proposition of law laid down that the Sessions Court can take cognizance against the person qua whom there is a no committal order and 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 and a person can be proceeded against under Section 319 Cr.P.C if from the evidence collected/produced in the course of any inquiry, the Court is prima facie satisfied that such person has committed offence for which he can be tried with other accused. In the said case, of Suman (supra) as per the complainant “after one week of the marriage, her mother-in-law - Rukmani Devi and nanad - Suman (the appellant herein) told her that in the marriage, items like scooter, fridge, air-conditioner etc. have not been given and the marriage party was not served well; that mother-in-law - Rukmani Devi and nanad – Suman forcibly took the complainant to a lady doctor and got implanted CRR No. 1933 of 2010 8 Copper-T so that she may not give birth to any child; that nanad - Suman started instigating the husband of the complainant either on phone or otherwise and thereupon, he not only used to assault, but also humiliate and torture the complainant; that on 7.4.2002 the husband gave beating with the belan and nanad - Suman snatched her hair and forcibly removed the brings. In her statement made before the police under Section 161 Cr.P.C., respondent No.2 reiterated all the allegations. The father and mother of respondent No.2 and 4 other persons, whose statements were recorded under Section 161 Cr.P.C., clearly spelt out the role played by the appellant in harassing respondent No.2 and instigating her husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand for dowry or harass respondent No.2 because she was living with her husband, Mahendra Pal at Bikaner. In her statement recorded under Section 164 Cr.P.C., respondent No.2 again made specific allegations against the appellant. While deciding the application filed under Section 319 Cr.P.C., the learned Judicial Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani Devi and sister-in-law, Suman had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated her husband to inflict physical torture, which were supported by the statements recorded by the police under Section 161 Cr.P.C.” It was, therefore, in the facts of that case, Hon'ble the Supreme Court held that the learned Judicial Magistrate has objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C. CRR No. 1933 of 2010 9 Whereas, allegations against the present petitioners as per the statement of Complainant, are that:- “On 05.11.1995, I had married my daughter Dilraj Kaur as per Sikh rights with Gurjeet Singh-accused present in the Court and at the time of marriage had given dowry as per my financial position. After some time, accused Gurjeet Singh present in the Court, his mother Avtar Kaur wife of Harbans Singh, resident of 440, Phase IX, Mohali, his sister Gursharan Kaur alias Nimmon and her husband Gurcharan Singh alias Chan, resident of HIG 765-B Phase IX Mohali, started mal treating my daughter for dowry and started giving beating. Aforesaid Gurjeet Sigh accused compelled me to give my daughter Rs.20,000/- and Rs.20,000/- as a dowry but that did not satisfy them and demanded Rs.50,000/- more by way of dowry.” Further, as per the statement of Dilraj Kaur, the allegations are:- “After the marriage, my husband Gurjit Singh, my sister-in-law (Nanad) Gursharan Kaur alias Nimmo, brother-in-law (Bhanoia) Gurcharanjit Singh and my mother-in-law Avtar Kaur started harassing and maltreating me with the pretext of bringing more dowry articles.” Thus, as per FIR as well as statements of PW1 and PW2 reproduced above, it is evident that sweeping allegations of dowry have been levelled against the present petitioners without pointing out any specific instances. Vague allegations of abuses have been levelled. Petitioner No. 1 (Gurcharanjit Singh) and petitioner No. 2 (Gursharan Kaur) were admittedly not residing with the complainant's daughter and her husband Gurjit Singh during the entire period regarding which the CRR No. 1933 of 2010 10 allegations have been levelled. Petitioner No. 1 was working as Swimming Coach with the Sports Authority of India and was posted at Sangrur from the year 1997 to 2000 and thereafter he was posted at Patiala from the year 2000 till 2004. Whereas, petitioner No. 2 was also a Government employee and working as Assistant in the office of Punjab Mandi Board and was posted at Patiala till 2004. Petitioners No. 1 and 2 were staying together at Patiala. Thus, applying the test as laid down in the case of Michael Machado, Sarabjit Singh as well as in the case of Suman (supra) relied upon by learned counsel for the respondent, the evidence in the present case do not constitute any compelling reason to enable this Court to come to conclusion that it would warrant their prosecution with good chance of conviction. Even otherwise, a tendency has developed for roping in all the relations in dowry cases in order to browbeat and pressurize the immediate family of the husband. Accordingly, sometimes inflated and exaggerated allegations are made. In view of the above, the petitioner petition is allowed the summoning order dated 04.05.2010 passed by the Chief Judicial Magistrate, Rupnagar is set aside qua petitioner Nos. 1 and 2 only. As regards petitioner No. 3, her case stands on different footing altogether. She is a mother-in-law. There is no definite evidence that petitioner No. 3 was staying separately. Thus, her interference being mother-in-law in the every day of married life of the daughter of the complainant cannot be ruled out. In the Indian families, the role of the CRR No. 1933 of 2010 11 mother-in-law and place in the house is of utmost importance. A mother-in- law has an active role in the matrimonial house. Therefore, she cannot be placed on the same pedestal as the married sister-in-law and sister-in-law's husband. dismissed. Accordingly, the present petition qua petitioner No. 3 is In view of the foregoing discussion, the present petition is partly allowed qua petitioners No. 1 and 2, and accordingly, FIR No. 43 dated 03.03.2006 Sections 406 and 498-A of Indian Penal Code, registered at Police Station Ropar is quashed qua petitioner Nos.1 and 2.

08.12.2010 (Nirmaljit Kaur) Judge