March 22 v. State of Haryana & Anr.

Mr.Sandeep Chauhan, Advocate, for the petitioners *** GURDEV SINGH, J. Petitioners, Sunehri Devi and Desh Raj, have preferred this revision petition under Section 401 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) for setting aside the order dated

23.2.2010 passed by Judicial Magistrate Ist Class, Karnal, vide which the application filed by Sudesh Kumari-complainant-respondent No. 2 under Section 319 of the Code was accepted and both these petitioners were ordered to be summoned as additional accused to stand their trial along with other accused. The facts, in brief, are that the marriage of the complainant was Crl.Revision No. 901 of 2010(O&M) {2} performed with Surjeet Singh son of the petitioners on 1.12.2002. Complaint was filed before Judicial Magistrate Ist Class, Karnal under Section 156(3) by the complainant against Surjeet Singh, present petitioners and others. She narrated therein that at the time of her marriage, her father had given sufficient dowry and cash amount of Rs. 60,000/- to Desh Raj- accused, after taking loan. Surjeet Singh was given gold chain, mange Ram was given four rings of gold. Similarly, specific articles were given to the other accused. They were demanding a Maruti car from her parents and on that ground started torturing her. Her sister was also married in the same family. Both of them were forced to do all the household work during their pregnancies. They were maltreated by all the accused. She gave birth to a daughter for which she was taunted by the accused and they asked her to told her parent to arrange for the money for the up brining of the daughter. Customary articles were given at that time but the accused were not satisfied with the same and they had been making demand of more articles. The behaviour of the accused was very cruel towards her and they used to give beatings to her and ultimately, she was turned out of her matrimonial house and was asked to bring Rs. 60,000/- from her parents. On the intervention of the panchayat, she was rehabilitated but she was again given beatings and was turned out of the matrimonial home. The accused had been misbehaving and taunting her and they had been threatening to kill her on the demand of dowry. On the basis of that complaint, FIR No. 329 dated

2.12.2005 was registered under Sections 498-A and 406 IPC in Police Station, Madhuban. After completion of the investigation, the challan was presented only against Surjeet Singh-accused. During the trial, statement of Sudesh Kumari-complainant, was recorded as PW-1. Thereafter, Crl.Revision No. 901 of 2010(O&M) {3} application was moved under Section 319 Cr.P.C. for summoning the present petitioners and Birbal as additional accused. The application was partly allowed vide the impugned order. The petitioners were summoned as additional accused whereas the prayer of the complainant for summoning Birbal, as such, was disallowed. I have heard learned counsel for the petitioners. It has been submitted by learned counsel for the petitioners that there was delay of more than two years in summoning the petitioners as additional accused, which itself is a ground for upsetting the impugned order. The trial court had before it the complaint and the statements of the witnesses recorded during investigation and such an order could have been passed on the basis thereof. Having failed to do so, the trial court was not competent to pass such an order after such a long time. These argument of the learned counsel for the petitioners are totally devoid of force. According to Section 319 of the Code, the additional accused can be summoned only on the basis of the evidence produced before the court. The trial court was not competent to summon any additional accused on the basis of the complaint and the statements of the witnesses recorded under Section 161 Cr.P.C. That power was to be exercised only on the basis of the evidence produced before it. The statement of the complainant was recorded on 22.1.2010 and the impugned order was passed on 23.2.2010. Thus, it cannot be said that there is any such delay in passing that order. Before summoning an additional accused, the court must have reasonable satisfaction, from the evidence already collected, regarding two aspects to proceed against the other person appearing to be guilty of Crl.Revision No. 901 of 2010(O&M) {4} offence. 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 already arrayed accused. The words “it appears from the evidence that any person not being the accused has committed any offence” appearing in this Section are very significant and provide a key to the proper construction of the same. On their plain meaning all they connnote is that there must be some legal evidence on the record showing involvement of any person other than the accused before the court in the commission of an offence. However, that evidence must be sufficient to make out a prima facie case against such a person and satisfy all the essential ingredients constituting the offence for which he is sought to be prosecuted. A judicial exercise is called for in order to determine if there was any sufficient ground for presuming that such a person has committed an offence. It has recently been held by the Apex Court in the case of Lal Suraj alias Suraj Singh and another vs. State of Jharkhand (2009) 2 Supreme Court Cases 696 as under:- “Section 319 of the Code is a special provision. It seeks to meet an extraordinary situation. It although confers a power of wide amplitude but is required to be exercised very sparingly. Before an order summoning an accused is passed, the trial court must form an opinion on the basis of evidence brought before it that a case has been made out that such person could be tried together with the other accused. There is no dispute with the legal proposition that even if a person had not been charged- sheeted, he may come within the purview of the description of such a person as contained in Section 319 of the Code. Crl.Revision No. 901 of 2010(O&M) {5} The approach of the learned Sessions Judge was wholly incorrect. The principle of strong suspicion may be criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.” The statement of the complainant, PW-1, recorded before the trial court has been placed on the record, which was duly perused. There are specific allegations against both the petitioners. The complainant stated that they had been maltreating her and harassing her on the ground of demand of dowry and that she was given beatings by them along with Surjit Singh in the month of April, 2004 and was asked to bring Rs. 60,000/- from her parents. From the statement of the complainant, it can easily be made out that there are sufficient grounds for presuming that the petitioners committed the offence under Section 498-A IPC. The conviction of the petitioners can be recorded on the basis of this evidence. Therefore, it cannot be said that the order passed by the trial court, summoning the petitioners as additional accused to stand their trial along with the other accused, suffers from any illegality nor the same can be said to be incorrect nor it can be said that the propriety required that such an order should not Crl.Revision No. 901 of 2010(O&M) {6} have been passed Therefore, there is no ground for interfering with this order while exercising the revisional jurisdiction. Revision petition is dismissed accordingly. (GURDEV SINGH) JUDGE March 22, 2010 PARAMJIT