Renu Dhiman v. State of Uttarakhand and Ors

The gravamen of the FIR is that the Applicant was subjected to physical and mental cruelty on account of unlawful demands of dowry made by the accused persons. The FIR specifically attributes acts of harassment and cruelty Respondents Nos. 2 and 3 (mother-in-law and brother-in-law) in addition to the husband.

4. Upon completion of the investigation, the Investigating Officer filed a charge sheet dated 20.06.2016 against only the husband (accused No. 1) and submitted a final report (closure) in respect of Respondents Nos. 2 and 3.

5. Aggrieved by the exclusion of Respondents Nos. 2 and 3 from the charge sheet, the Applicant filed a protest petition dated

09.11.2016 under Section 173(8) CrPC before the learned Additional Chief Judicial Magistrate-I, Dehradun. The said protest petition was dismissed vide order dated 07.10.2017.

6. During the course of the trial, after recording the statement of the complainant (PW-1), the Applicant moved an application under Section 319 CrPC for summoning Respondents Nos. 2 and 3 to face trial as additional accused.

7. The application under Section 319 CrPC was allowed by the learned Additional Chief Judicial Magistrate-I, Dehradun, vide order dated 08.04.2019, primarily relying upon the statements made Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 2 Ashish Naithani J. by the complainant in her examination-in-chief and the contents of the FIR.

8. Aggrieved by the summoning order, Respondents Nos. 2 and 3 preferred Criminal Revision No. 137 of 2019 before the learned Additional District and Sessions Judge-IV, Dehradun. The Revisional Court allowed the revision vide order dated 04.09.2019, setting aside the summoning order dated 08.04.2019.

9. The Revisional Court held that since the protest petition filed earlier by the Applicant had already been dismissed on

07.10.2017, the subsequent application under Section 319 CrPC amounts to a review of the earlier order and is impermissible in law.

10. The Revisional Court further observed that the evidence adduced during the trial was not sufficient to invoke the extraordinary jurisdiction under Section 319 CrPC, which requires strong and cogent evidence indicative of the involvement of the persons sought to be summoned.

11. Learned counsel for the Applicant submitted that the impugned order dated 04.09.2019 passed by the Revisional Court suffers from patent illegality and is unsustainable in law.

12. It is contended that the Revisional Court has erred in equating the protest petition under Section 173(8) CrPC with the application under Section 319 CrPC. The two proceedings are distinct, operate at different stages of the criminal process, and are governed by different legal standards. Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 3 Ashish Naithani J.

13. Learned counsel submitted that the dismissal of the protest petition does not operate as res judicata against the exercise of power under Section 319 CrPC, which arises upon the emergence of additional evidence during trial.

14. It further contended the statement of complainant recorded during trial, coupled with the specific allegations in the FIR, clearly disclose the active involvement of Respondents Nos. 2 and 3 in the commission of offences under Sections 498-A, 323, 504, and 506 IPC and Sections 3 and 4 of the Dowry Prohibition Act.

15. The learned Magistrate rightly exercised the jurisdiction under Section 319 CrPC, which empowers the Court to summon any person who, though not an accused at the commencement of trial, appears to have committed an offence based on the evidence led during trial.

16. Learned counsel relied upon the judgments of the Hon'ble Supreme Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, and Brindaban Das v. State of West Bengal, (2009) 3 SCC 329, to contend that the power under Section 319 CrPC is wide, though discretionary, and can be exercised even against persons not charge-sheeted, provided there is more than a prima facie case.

17. It is argued that the Revisional Court has adopted a hyper- technical approach and has misapplied the law by setting aside the summoning order.The Applicant, therefore, prays impugned order dated 04.09.2019 passed by the Revisional Court Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 4 Ashish Naithani J. be set aside and the order dated 08.04.2019 passed by the learned Magistrate summoning Respondents Nos. 2 and 3 be restored.

18. Learned counsel for Respondents Nos. 2 and 3 submitted that the FIR itself is based on false and frivolous allegations aimed at harassing the family members of the husband.It is contended that the investigating officer, upon a thorough investigation, found no material against Respondents Nos. 2 and 3 and rightly excluded them from the charge sheet.

19. Learned counsel argued the statement of complainant recorded during the trial does not disclose any concrete or specific act attributable to Respondents Nos. 2 and 3 that would warrant their summoning under Section 319 CrPC.

20. It is further submitted that the summoning order passed by the learned Magistrate amounts to a review of the earlier order dated 07.10.2017, whereby the protest petition was dismissed. Such a review is impermissible in law.

21. The Revisional Court has rightly relied upon the settled principle that the power under Section 319 CrPC is to be exercised sparingly and only in cases where strong and cogent evidence emerges during trial, pointing toward the involvement of the persons sought to be summoned.

22. Learned counsel placed reliance on the judgments of the Hon’ble Supreme Court in Michael Machado v. Central Bureau of Investigation, (2000) 3 SCC 262, and Periyasami v. S. Nallasamy, (2019) 4 SCC 537, to contend that the power under Section 319 CrPC is Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 5 Ashish Naithani J. extraordinary and cannot be invoked in a casual or cavalier manner.

23. It is contended that the Revisional Court has passed a well- reasoned and legally sound order, which does not warrant interference by this Court in the exercise of its inherent jurisdiction under Section 482 CrPC.

24. Heard learned counsel for the Parties and perused the records.

25. At the outset, it would be appropriate to recapitulate the legal framework governing the exercise of power under Section 319 CrPC. The provision empowers a Court to proceed against any person, not being an accused, if it appears from the evidence that such person has committed an offence for which they could be tried together with the accused already facing trial. The jurisdiction under Section 319 CrPC is extraordinary and should be exercised sparingly and with utmost care.

26. The Constitution Bench of the Hon’ble Supreme Court in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, has authoritatively settled the contours of this power. It has been held that the satisfaction required for summoning a person under Section 319 CrPC is higher than the standard for framing of charge but short of the standard necessary for conviction. The Court must be convinced that there is more than a prima facie case against the person sought to be summoned.

27. It is equally well settled that the power under Section 319 CrPC can be exercised at any stage after commencement of inquiry Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 6 Ashish Naithani J. or trial but before the pronouncement of judgment. This power can be invoked regardless of whether the person was named in the FIR or included in the charge sheet by the investigating agency.

28. Turning to the facts of the present case, the summoning order dated 08.04.2019 passed by the learned Magistrate rests primarily on the testimony of the complainant (PW-1) recorded during the trial, coupled with the contents of the FIR. The learned Magistrate, upon a reading of the statement of PW-1, formed the view that a case is made out to summon Respondents No. 2 and 3 to face trial.

29. However, on an examination of the statement of PW-1, it is evident that the allegations made are general and omnibus in nature. There is an absence of any specific incident, date, or overt act directly attributable to Respondents No. 2 and 3. While it is true that harassment often occurs within the confines of domestic life in matrimonial disputes, the law nonetheless requires that specific and cogent material must be presented during trial before the extraordinary power under Section 319 CrPC is exercised.

30. This position finds fortification in the decision of the Hon’ble Supreme Court in Brindaban Das v. State of West Bengal, (2009) 3 SCC 329, where it was observed that vague allegations without precise attribution of roles do not meet the threshold required for summoning additional accused under Section 319 CrPC.

31. The learned counsel for the Applicant has argued that the dismissal of the protest petition dated 07.10.2017 would not Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 7 Ashish Naithani J. preclude the Magistrate from exercising power under Section 319 CrPC. This submission, in principle, is correct. The Hon’ble Supreme Court in Hardeep Singh (supra) has clarified that the proceedings under Section 319 CrPC are distinct and independent of the process of cognizance based on a charge sheet or the outcome of a protest petition. The dismissal of a protest petition does not bar the Court from summoning a person if sufficient evidence emerges during the course of trial.

32. To that extent, the finding of the revisional court that the Magistrate lacked jurisdiction to summon Respondents No. 2 and 3 on account of the earlier dismissal of the protest petition cannot be sustained in law.

33. Nevertheless, the Revisional Court’s conclusion that the material on record does not meet the threshold under Section 319 CrPC merits acceptance. It is a settled proposition that mere reference to a person in the FIR or general allegations made in the examination-in-chief of a complainant cannot by themselves justify summoning under Section 319 CrPC unless the testimony discloses specific involvement or incriminating material that creates a reasonable prospect of conviction.

34. This Court also takes note of the caution sounded by the Hon’ble Supreme Court in Michael Machado v. CBI, (2000) 3 SCC 262, and reiterated in Periyasami v. S. Nallasamy, (2019) 4 SCC 537, that the power under Section 319 CrPC is not to be exercised in a routine manner but only upon the satisfaction of the Court that Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 8 Ashish Naithani J. strong and cogent evidence exists against the person sought to be added as an accused.

35. Furthermore, it cannot be overlooked that the investigating agency, after due investigation, submitted a final report in favour of Respondents Nos. 2 and 3. While the opinion of the investigating agency does not bind the Court, the absence of any corroborative evidence during the trial further reinforces the conclusion that the evidence against respondents Nos. 2 and 3 is, at best, tenuous.

36. In matrimonial disputes, there is a growing judicial recognition of the tendency to implicate the entire family of the husband. The Hon’ble Supreme Court in K. Subba Rao v. State of Telangana, (2018) 14 SCC 452, has cautioned against the mechanical summoning of relatives without substantive evidence. This consideration assumes particular significance in the present case, where the allegations against respondents Nos. 2 and 3 are general in nature, without any specific act of cruelty or demand for dowry being attributed to them.

37. On a holistic appreciation of the evidence, this Court is satisfied that the learned Magistrate fell into error in exercising the power under Section 319 CrPC in the absence of evidence of the quality required by law. At the same time, the conclusion drawn by the Revisional Court that the Magistrate lacked jurisdiction on account of the prior dismissal of the protest petition cannot be upheld, as it runs contrary to the law laid down in Hardeep Singh (supra). Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 9 Ashish Naithani J.

38. Nonetheless, since the ultimate conclusion arrived at by the Revisional Court, namely, the summoning order unsustainable on merits, is correct, no interference is warranted with the final outcome of the revisional order. ORDER In view of the foregoing discussion, the Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973, is dismissed. SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c12f21822fbd40bf639b 1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BED00E67B5283D205F18F E29BDF5DD9, cn=SHIKSHA BINJOLA (Ashish Naithani J.) Criminal Misc. Application No. 2278 of 2019, Renu DhimanVs State of Uttarakhand and Ors. 10 Ashish Naithani J.