S. K. Mahajan ( 1 ) BEING aggrieved by the order of learned Additionalsessions Judge summoning the petitioners to face trial under Sections 498-A/304-B, IPC, the petitioners have filed this petition for quashing the order ofsummoning alleging inter alia that, firstly, there was no evidence before learnedadditional Sessions Judge to form an opinion that a prima facie case had been madeout against the petitioners and secondly, even assuming such a material wasavailable on the police record, the Additional Sessions Judge could not summon thepetitioners by invoking powers under Section 319 of the Code of Criminal Procedure (in short referred to as "the Code") without recording evidence during trial. Before dealing with the contentions of the respective parties, let me first give a fewfacts which are relevant for deciding this petition. ( 2 ) ONE Kusum, the deceased, was married to Radhe Shyam on 16/04/1990. The petitioners are the brothers of Radhe Shyam. The petitioners liveseparately from Radhe Shyam and have their separate business. On 19/03/1994 Kusum died in mysterious circumstances and on post-mortem having beenconducted, the cause of death was found to be vasovagal shock consequent to thepressure on the neck. The Sub-Divisional Magistrate after holding the inquestproceedings on 22/03/1994 recommended a case to be registered againstradhe Shyam and his mother under the relevant provisions of law. The FIR wasregistered against Radhe Shyam alone for his having committed an offencepunishable undersections 498-A/304-B/34, IPC. During investigation it appearedto the Investigating Authority that a case under Section 302 was also mad- out andthe mother of Radhe Shyam was also involved in the commission of crime. Chargesheet was, accordingly, filed in the Court of the Metropolitan Magistrate againstradhe Shyam and his mother for their having allegedly committed an offencepunishable under Sections 498-A/302/304-B/34, IPC. None of the petitioners wasfound to be involved in the commission of crime and their names were not includedin the charge sheet. After taking cognizance of the offence, the Metropolitanmagistrate committed the accused to the Court of Sessions. It was at that stage thatan application under Section 319 of the Code of Criminal Procedure was filed by thecomplainant for summoning the petitioners aswell for facing trial. After taking cognizance of the offence, the Metropolitanmagistrate committed the accused to the Court of Sessions. It was at that stage thatan application under Section 319 of the Code of Criminal Procedure was filed by thecomplainant for summoning the petitioners aswell for facing trial. By the impugnedorder, learned Additional Sessions Judge held that he was unable to find anythingin the statement of witnesses which could distinguish the case of the accused Radheshyam and Ram Pyari from the case of the petitioners and he, therefore, summonedthe petitioners to face trial under Sections 498-A/304-B of the Indian Penal Code. ( 3 ) IT is contended by Mr. Sud, learned Counsel for the petitioners, that at thetime of summoning a person under Section 319 of the Code, the Court must forman opinion on the basis of the evidence available on record at that stage that a primafade case was made out against the persons who were going to be summoned. Thisevidence, according to Mr. Sud, must come before the Court during trial and thecourt cannot rely upon the statements of the witnesses recorded by the police beforefiling the charge sheet for purposes of summoning another person under Section 319of the Code. It is also the contention of Mr. Sud that even assuming that the Courthas the power to summon any person to face trial alongwith the accused who havealready been named in the charge sheet, learned Additional Sessions Judge couldnot, in the facts and circumstances of this case, summon the petitioners as thematerial before him was not sufficient to enable him to form an opinion that a primafade case had been made out against the petitioners. ( 4 ) THE FIR in this case was registered on the basis of the statement of Mr. Ghanshyam, brother of the deceased. It is stated by him in his statement that thedeceased was married to Radhe Shyam in 1990 when Radhe Shyam was living indistrict Hisar, that after 4-5 months of marriage he shifted to Delhi; that thedeceased was living alongwith Radhe Shyam and his mother, that one and a halfmonths after the marriage, the petitioners, their mother and the husband of thedeceased started harassing her. A sum of Rs. 7,000. 00 is stated to have been paid toone of the petitioners Dharam Pal two months after the marriage. A sum of Rs. 7,000. 00 is stated to have been paid toone of the petitioners Dharam Pal two months after the marriage. After Kusum hadgiven birth to a daughter, the said persons had allegedly started harassing her moreand a sum of Rs. 13,000. 00 is stated to have been paid at that time which includedclothes and other articles. On 19/03/1994 he was informed that his sister hadbeen killed and immediately on receiving this information, he reached Delhi and thedead body of the deceased was taken into possession by the police. He suspectedthe involvement of Radhe Shyam, his mother and the petitioners in the killing of hissister. The police, however, registered the FIR only against the husband of thedeceased. ( 5 ) TO attract the provisions of Sections 498-A and 304-B, it must be shownthat the husband or the relatives of the husband of the woman has been subjectedto cruelty. For purposes of this Section, cruelty has been defined to mean any wilfulconduct which is of such a nature as is likely to drive the woman to commit suicideor to cause grave injury or danger to life, limb or health of the woman or harassmentof the woman where such harassment is with a view to coercing her or any personrelated to her to meet any unlawful demand for any property or valuable securityor is on account of failure by her or any person related to her to meet such demand. A person will be guilty of an offence punishable under Section 304-B of the IPCwhere the death of a woman is caused otherwise than in normal circumstanceswithin seven years of her marriage and it is shown that soon before her death, shewas subjected to cruelty or harassment by her husband or any relative of herhusband for, or inconnection with, any demand for dowry. In this case, the onlyallegation against the petitioners is that after about one and a half months after themarriage, the mother-in-law, husband of the deceased and the petitioners hadstarted harassing the deceased. Nowhere in the statement it has been said that thealleged harassment was on account of any demand of dowry. Though at one placeit has been stated that one of the petitioners, namely, Dharam Pal had demandedrs. 7,000. Nowhere in the statement it has been said that thealleged harassment was on account of any demand of dowry. Though at one placeit has been stated that one of the petitioners, namely, Dharam Pal had demandedrs. 7,000. 00 after about two months of marriage which was given to him, however,there is nothing else in the statement to show that on any occasion any of thepetitioners had made any demand of dowry or that any alleged harassment of thedeceased was on account of the complainant having not met the dowry demand. ( 6 ) TO attract the provisions of Section 498-A of the IPC, the allegations madeshould be specific and not vague. The provision of law requires that the deceasedshould have been subjected to cruelty and harassment for demand of dowry beforeher death and not a vague or stray taunt for bringing less dowry. Except one instanceof the brother of the husband of the deceased having allegedly demanded a sum ofrs. 7,000. 00 two months after the marriage, there is no other allegation in thestatement of the brother of the deceased that any demand of dowry was made byany of the petitioners. The deceased had died almost four years after the allegeddemand and even assuming this demand to be correct, this cannot be the basis ofinitiating proceedings against the petitioners. In my view, there was no materialbefore learned Additional Sessions Judge to form an opinion that a prima facie casehad been made out against the petitioners about their involvement for havingcommitted an offence punishable under Section 498-A, IPC. ( 7 ) THIS brings me to the question as to whether the petitioners could besummoned even under Section 304-B of the IPC. To attract the provisions of Section304-B, IPC, it must be shown that soon before her death, the deceased was subjectedto cruelty or harassment by her husband or any relative of her husband for, or inconnection with, any demand for dowry. There is not even a single. averment madeby the complainant or any other witness before the police that soon before her deaththe deceased was subjected to cruelty for or in connection with the demand ofdowry. There is not even a single. averment madeby the complainant or any other witness before the police that soon before her deaththe deceased was subjected to cruelty for or in connection with the demand ofdowry. When learned Additional Public Prosecutor as well as Counsel for thecomplainant was specifically asked whether there was any evidence before thecourt to form an opinion about the involvement of petitioners in the commissionof offence under Section 304-B of the IPC, I was informed that Pawan Kumar,another brother of the deceased, had made a statement that soon before her deaththe deceased had informed him that she was being subjected to cruelty for havingnot brought sufficient dowry Having gone through the statement of Pawan Kumar,i do not find any such allegation made by him against any of the petitioners. Pawanwas posted at Guwahati and it has been stated by him that in 1993 when he cameto Delhi to attend the marriage of his brother, he had paid a sum of Rs. 3,000. 00 tokusum and at that time she had informed him that "her mother-in-law and husbandused to harass her and taunt her that she had not brought sufficient dowry". Besidesthis statement, there is nothing else in the statement of Pawan which could involvethe petitioners. In my view, therefore, there was no material before learnedadditional Sessions Judge to form an opinion about the prima facie involvementof the petitioners in the commission of offence punishable under Section 304-B ofthe IPC. ( 8 ) THOUGH, it has also been argued by Mr. Sud that to attract the provisionsof Section 319 of the Code, the petitioners could not be summoned unless someevidence had been brought before the Court during trial of the case and as the trialhad not even started, the order of the Additional Sessions Judge was bad Reliancefor this has been placed upon a judgment of the Supreme Court in Raj Kishoreprasad v. State of Bihar and Am. , JT 1996 (5) SC 437=iv (1996) CCR 158 (SC ). Ms. Gupta, learned Additional Public Prosecutor, however, relied upon another judg-ment of the Supreme Court reported as Kishun Singh and Ors. , JT 1996 (5) SC 437=iv (1996) CCR 158 (SC ). Ms. Gupta, learned Additional Public Prosecutor, however, relied upon another judg-ment of the Supreme Court reported as Kishun Singh and Ors. v. State ofbihar, JT1993 (i) SC 173=l (1993) CCR 54 (SC), where it was held as under : "we have already indicated earlier from the ratio of this Court s decisionsin the cases of Raghubans Dubey and Hareram that once the Court takescognizance of the offence (not the offender) it becomes the Court s duty tofind out the real offenders and if it comes to the conclusion that besides thepersons put up for trial by the police some others are also involved in thecommission of the crime, it is the Courts duty to summon them to stand trialalongwith those already named, since summoning them would only be apart of the process of taking cognizance. We have also pointed out thedifference in thelanguage of Section 193 of the two Codes, under the oldcode the Court of Session was precluded from taking cognizance of anyoffence as a Court of original jurisdiction unless the accused was committedto it whereas under the present Code the embargo is diluted by thereplacement of the words the accused by the words the case. Thus, on a plainreading of Section 193, as it presently stands once the case is committed tothe Court of Session by a Magistrate under the Code, the restriction placedon the power of the Court of Session to take cognizance of an offence as acourt of original jurisdiction gets lifted. On the Magistrate committing thecase under Section 209 to the Court of Session the bar of Section 193 is liftedthereby investing the Court of Session complete and unfettered jurisdictionof the Court of original jurisdiction to take cognizance of the offence whichwould include the summoning of the person or persons whose complicityin the commission of the crime can prima facie be gathered from the materialavailable on record. " ( 9 ) AS I have already held that there was no material before learnedadditional Sessions Judge to form an opinion about the primafacie involvementof the petitioners in the commission of offence for which they have been summoned,i need not dwell myself upon the question as to whether the Additional Sessionsjudge had the power to summon a person who to not an accused before him undersection 319 of the Code of Criminal Procedure without any evidence having beenproduced before him during trial. ( 10 ) FOR the foregoing reasons, I allow this petition and quash the impugnedorder of the learned Additional Sessions Judge whereby the petitioners weresummoned to face trial under Sections 498-A/304-B of the IPC. However, I wouldlike to clarify that this order will not be a bar to the Additional Sessions Judge tosummon either the petitioners or any other person whose involvement may cometo the notice of the Additional Sessions Judge, after evidence has been recorded bythe Court. With these observations, the petition stands disposed of. Petition allowed.