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2003 DIGILAW 1439 (PNJ)

Meena Devi v. Narender

2003-10-16

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 401 of the Code of Criminal Procedure, 1973 by the prosecutrix Smt. Meena Devi challenges order dated 6.8.2003 passed by the learned Additional Sessions Judge, Jhajjar dismissing the application of the prosecution to summon Narender, Dhari, Sushila, Kamlesh and Rakesh Kumar under Section 319 Criminal Procedure Code 2. Brief facts of the case for deciding the controversy raised in the instant petition are that Meena Devi prosecutrix-petitioner was married to one Parshotam S/o Kapoor Singh on 5.12.1999. She lodged an FIR No. 465 dated 12.10.2000 P.S. Jhajjar under Sections 498-A, 406/376 Indian Penal Code revealing allegations that sufficient dowry was given by her parents. Her husband is impotent and on 11.12.1999 at about 12.00 in the night, the brother of her husband namely one Darshan raped her against her wishes but with the consent of her husband Parshotam. Later on she was assured by all members of the family that she would be married to Darshan. No report was lodged and for that reason no complaint with regard to her rape was lodged. It is further alleged that her in-laws are demanding a scooter and golden chain for every member of the family to keep her at the matrimonial home. They have also expressed the desire that her sister be married to Darshan. In this way she was to continue to be legally wedded wife of Parshotam and she would have baby. She has also named her mother-in-law Angoori, brother-in-law Rajinder and his wife Maya, her other brother-in-law Narender and Dhari @ Suresh, her brother-in-law Darshan, sisters in-law Sushila and Kamlesh and husband of Kamlesh namely Rakesh for harassing her on account of bringing less dowry. The police investigated the allegations and put up the challan against the husband of the prosecutrix-petitioner. Parshottam, her brother-in-law Darshan, mother-in-law, Angoori, brother-in-law Rajinder and his wife Maya. However, Narender and his wife Dhari, Sushila, Kamlesh and her husband Rakesh were kept in column No. 2 as no evidence was found against them. However, an application was filed under Section 319 Criminal Procedure Code requesting the trial Court to summon Narender, Dhari, Sushila, Kamlesh and Rakesh to face trial under Sections 498-A, 406 and 376 Indian Penal Code alongwith other co-accused. However, an application was filed under Section 319 Criminal Procedure Code requesting the trial Court to summon Narender, Dhari, Sushila, Kamlesh and Rakesh to face trial under Sections 498-A, 406 and 376 Indian Penal Code alongwith other co-accused. The learned Additional Sessions Judge, Jhajjar, dismissed the application by observing as under: "A thorough look at the complaint dated 12.10.2002 preferred by the prosecutrix reveals that against Narender etc. who have been sought to be summoned by way of present application there are only general allegations of demand of dowry and they have nothing to do with the alleged allegation of rape with the alleged prosecutrix. In authority Dr. Sant Singh v. State of Punjab, 2001 (Criminal Court Judgments) 772, our own High Court while dealing with the scope of section 319 of the Criminal Procedure Code has laid down that power vested under this section has to be used sparingly and primarily to advance the cause of criminal justice but not as an handle at the hands of the complainant to cause harassment. Keeping in mind this aforesaid proposition of law this Court is of the considered view that the present application containing no merits deserves dismissal and the same is hereby ordered to be dismissed." 3. Mr. D.S. Bali, learned senior counsel has vehemently argued that specific allegations have been levelled against Narender, Dhari, Sushila, Kamlesh and Rakesh Kumar showing demand of dowry by them and also showing that they have promised that she would be married to Darshan and, therefore, that would constitute sufficient basis for the Court to summon them to stand trial. The learned counsel has stressed that all of them have significantly contributed to the commission of offences under Sections 406 and 498-A Indian Penal Code and it was their help that Darshan could commit rape on the prosecutrix-petitioner. Therefore, the learned counsel has maintained that the order dated 6.8.2003 passed by the learned Additional Sessions Judge is liable to be seaside. 4. Having heard the learned counsel and perusing the order passed by the learned Additional Sessions Judge as well as the FIR, I am of the considered view that no interference is called for as the impugned order does not suffer from any legal infirmity. 4. Having heard the learned counsel and perusing the order passed by the learned Additional Sessions Judge as well as the FIR, I am of the considered view that no interference is called for as the impugned order does not suffer from any legal infirmity. The learned Sessions Judge has rightly come to the conclusion that there is no evidence on record inspiring the confidence that there are reasonable prospecs of conviction of Narender, Dhari, Sushila, Kamlesh and Rakesh Kumar specially when no evidence has been found against them. It appears to be well settled that unless there are reasonable prospects of conviction, the powers under Section 319 Criminal Procedure Code for summoning the additional accused for trial should not be used. In the case of Michael Machado and another v. Central Bureau of Investigation and another, 2000(3) SCC 262 the Supreme Court has taken the view that on the basis of mere suspicion, powers under Section 319 Criminal Procedure Code cannot be used. In this regard, the observation of the Supreme Court reads 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, has committed an offence for which that person could be tried together with the accused already arraigned. It is not 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 as 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 of collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons." 5. It has further been observed that the Court must take into consideration various factors contemplated by sub-section (4) of Section 319 Criminal Procedure Code namely that the proceedings in respect of newly added accused would have to commence afresh and the witnesses have to be re-heard and the whole proceedings have to commence from the beginning of the trial, which would mean summoning the witnesses once again, examine them and cross-examine them in order to reach the stage where it had already reached. 6. When the facts of the present case are examined in the light of the principles laid down by the Supreme Court in Michael Machado judgment (supra) then it becomes clear that statement of prosecutrix-petitioner against Narender, Dhari, Sushila, Kamlesh and Rakesh Kumar has not been considered as sufficient evidence warranting their summoning for trial under Sections 406, 498-A and 376 Indian Penal Code. The allegations against them are general in character and are confined to demand of dowry. It is also pertinent to mention that there is a tendency to involve every member of the family, which has been reflected in large number of cases. The husband Parshotam and his brother Darshan alongwith others have already been summoned and are facing trial. For the reasons mentioned above, this petition fails and the same is dismissed. Petition dismissed.