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2003 DIGILAW 1297 (PNJ)

Manoj Kumar v. Prabhu Ram

2003-09-16

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 401 of the Criminal Procedure Code, 1973 challenges order dated 11.7.2003 passed by the Additional Sessions Judge, Gurgaon, dismissing an application of the complainant- petitioner for summoning five persons as accused under Section 319 Criminal Procedure Code The complainant-petitioner has prayed that Prabhu Ram, his wife Resham Devi, his son Sunil Kumar and his daughter-in-law Pinki and Subhash s/o Siri Ram be summoned as additional accused to face trial in respect of offences punishable under Section 306 Indian Penal Code. It is appropriate to mention that Krishan Kumar son of Prabhu Ram is already facing trial under Section 306 Indian Penal Code in case FIR No. 95 of 10.7.2002 under Section 306 Indian Penal Code P.S. Tauru. 2. The facts in brief are that on the statement made by one Manoj Kumar, the FIR was registered who alleged that his sister Birmati was married to Krishan Kumar. She was tortured by her husbands in-laws to such an extent that they ultimately murdered her on 22.6.2002. The further allegation is that the culprits later on sprinkled kerosene oil on her body to mislead the police that it was a case of suicide. After investigation, the police had filed challan only against Krishan Kumar the husband of the deceased. Prabhu Ram (father-in-law), Resham Devi (mother-in-law), Sunil Kumar (brother of Krishan Kumar) and his wife Pinki (wife of Sunil Kumar) and Subhash were not challaned. They were found innocent during investigation. The main accused namely Krishan Kumar is facing trial and prosecution has examined complainant Manoj Kumar PW-1 on 22.1.2003. On the statement made by Manoj Kumar as PW-1, an application under Section 319 Criminal Procedure Code for adding the afore-mentioned persons as additional accused was filed. The application has been dismissed by the learned Additional Sessions Judge with the observation that during investigation, the police had seized ration card, which revealed that Birmati deceased sister of Manoj Kumar PW-1 used to live separately alongwith her husband Krishan Kumar. In other words their ration card was separate from her parents-in-law and brother-in-law. This has also been found from the examination of the respectables of the village and the family dispute was the basic reason which ultimately led to the commission of a suicide. The observation of the learned Sessions Judge in para 5 reads as under :- "9. In other words their ration card was separate from her parents-in-law and brother-in-law. This has also been found from the examination of the respectables of the village and the family dispute was the basic reason which ultimately led to the commission of a suicide. The observation of the learned Sessions Judge in para 5 reads as under :- "9. During investigations, police has seized ration cards which revealed that deceased alongwith her husband Krishan Lal was living separate from her parents-in-law and brother-in-law. The police on contacting respectables of the village had found that Krishan Lal alongwith his deceased wife living separate from his parents and brother. The investigations also revealed that family feud was the cause which ultimately led to the commission of suicide. The precise dispute was that accused Krishan Lal wanted his deceased wife to take up employment as labourer but the deceased considered it as her insult. Frequent quarrels on this issue ultimately led to a commission of suicide. Statements of two co-villagers namely Sant Ram and Daya Ram were recorded in this regard and the police had even cited them as witnesses in the case. -------It is no-where stated by Manoj Kumar PW that the persons now sought to be summoned were not living separate from the family of the deceased. As earlier observed, two of the prosecution witnesses namely Sant Ram and Daya Ram had indicated that the husband of deceased was living separate and that the frequent dispute over the matter regarding taking up of employment by the deceased as labourer was the actual cause which led to commission of suicide. Manoj Kumar PW in his deposition has made no assertion either to the effect that the police had cited Sant Ram and Daya Ram as witnesses to help the accused or that these witnesses had projected a false cause for commission of the alleged suicide. Needless to mention that there is always a tendency on the part of deceaseds parents and brothers to involve as many as member of the family of deceaseds husband as possible. Looking to over all circumstances of the case, the Court is of the considered opinion that evidence of Manoj Kumar PW alone is not sufficient to summon additional accused." 3. Mr. Looking to over all circumstances of the case, the Court is of the considered opinion that evidence of Manoj Kumar PW alone is not sufficient to summon additional accused." 3. Mr. R.D. Yadav, learned counsel for the complainant-petitioner has argued that once name of additional accused has been revealed in the statement made by the prosecution witnesses then in accordance with 319 Criminal Procedure Code, the additional accused should be added and asked to face trial. The learned counsel has stressed that the question of separate ration card or other things could not constitute the basis for refusing the prayer made by the complainant-petitioner. 4. After hearing the learned counsel, I am of the considered view that the powers given under Section 319 Criminal Procedure Code are to be used sparingly and only if there is convincing evidence against the persons sought to be added as an accused. The learned Additional Sessions Judge, thus, rightly relied upon the judgment of the Supreme Court in Municipal Corporation Delhi v. Ram Kishan Rohtagi and others, 1983 S.C. Cases (Crl.) 115 and Michael Machado and another v. Central Bureau of Investigation, AIR 2000 Supreme Court 1127. The observation in Michael Machados case read as under :- "11. The basic requirements 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 enough that the Court entertained 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. 12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons." (Emphasis added) 5. Similar view has been taken by this Court in the case of Gurpal Singh v. State of Punjab, 2001(2) RCR(Crl.) 580. The Suprme Court in Kishun Singh v. State of Bihar, (1993)2 SCC 16 has also held that the provisions of Section 319 Criminal Procedure Code confers an extra ordinary power and should not be easily resorted to. The views of their Lordships read as under :- "12. But then it must be conceded that Section 319 covers the post-cognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. Section 319 can be invoked both by the Court having original jurisdiction as well as the Court to which the case has been committed or transferred for trial. The sweep of Section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. If this is the true scope and ambit of Section 319 of the Code, the question is whether there is any other provision in the Code which would entitle the Court to pass a similar order in similar circumstances. The search for such a provision would be justified only on the premise that Section 319 is not exhaustive of all post-cognizance situations. Now as pointed out earlier Section 319 deals with only one situation, namely the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. The search for such a provision would be justified only on the premise that Section 319 is not exhaustive of all post-cognizance situations. Now as pointed out earlier Section 319 deals with only one situation, namely the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evident recorded at the inquiry or trial. Once the purport of Section 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the inquiry or trial. Thus the section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court." (Emphasis added) 6. When the facts of the present case are examined in the light of the principles laid down by the Supreme Court in the above-mentioned judgments, it becomes evident that the Additional Sessions Judge has rightly come to the conclusion that there is inherent fallacy in the prayer made by the complainant-petitioner in asking the parents-in-law and the family of brother-in-law of the deceased Birmati to be summoned as accused and face trial. The documentary evidence in the shape of ration card and the investigation made by the police hardly leaves a doubt that the learned Additional Sessions Judge was fully convinced that the allegations made against some of the other persons could not be substantiated and they would be unnecessarily dragged in criminal litigation. Therefore, this petition is without any merit and is, thus, liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.