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2006 DIGILAW 4289 (PNJ)

Paramjit Kaur v. State Of Punjab

2006-11-08

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. The petitioners have challenged the order passed by Judicial Magistrate Ist Class, Pathankot on 14.7.2005, whereby, they have been summoned under Section 319 Cr.P.C. as additional accused in the case arising out of FIR No. 20 dated 17.5.2003 registered at Police Station, Shahpur-Kandi under Sections 498-A/506 IPC. 2. The FIR was registered on the basis of an application submitted by Kamlesh Kumari-respondent No. 2, wherein, she stated that she was married to Amrik Singh on 27.4.2001. At the time of her marriage, her parents gave sufficient dowry as per their capacity. However, after two months of the marriage, her husband started maltreating her besides demanding a scooter to be brought from her parents. In December, 2001, her mother-in-law, Surinder Kaur, her sisters-in-law, Paramjit Kaur, Somi and Pinki tried to pour oil upon her but she saved her life by running away. On 12.7.2002, she gave birth to a male child but her husband came to her parents house on 6.4.2003 and threatened to kill her and her parents if she did not bring Rupees two lacs from her parents as he had suffered huge loss in the business. With these allegations, complainant-Kamlesh Kumari requested for taking legal action against her husband, her mother-in-law and her three sisters-in-law. 3. During the investigation of the case, the police could not collect sufficient evidence to connect the mother-in-law and sisters-in-law of Kamlesh Kumari-complainant with the crime. Accordingly, all four of them were found innocent and their names were mentioned in column No. 2 of the report under Section 173 Cr.P.C. Only Amrik Singh was sought to be prosecuted. Accordingly, final report was submitted against him. 4. After the framing of charge under Section 498-A IPC against Amrik Singh, the prosecution examined the complainant on 29.1.2005. After the completion of her examination-in-chief, she was offered for cross-examination. She was cross-examined for some time, whereafter, remaining cross-examination was deferred till 4.3.2005. An application was moved by the State for summoning the present petitioners who are the three sisters-in-law and mother-in-law, respectively of Kamlesh Kumari-complainant as additional accused to face trial along with Amrik Singh (husband of the complainant). The said application was allowed by the trial Court vide order dated 14.7.2005 which is under challenge in the present petition. 5. An application was moved by the State for summoning the present petitioners who are the three sisters-in-law and mother-in-law, respectively of Kamlesh Kumari-complainant as additional accused to face trial along with Amrik Singh (husband of the complainant). The said application was allowed by the trial Court vide order dated 14.7.2005 which is under challenge in the present petition. 5. Learned counsel for the petitioners submitted that Amrik Singh had filed a petition under Section 9 of the Hindu Marriage Act on 4.3.2003 in which, notice was issued to complainant-Kamlesh Kumari for 25.4.2003. The said notice, however, was received back unserved, although, as per the endorsement made on the registered cover, the postal authorities mentioned about the efforts made by it to deliver the notice to her at her address on 31.3.2003, 1.4.2003, 2.4.2004, 3.4.2003, 4.4.2003, 5.4.2003 and 7.4.2003. Finally, the postal authorities made a note that the notice could not be delivered as the complainant was not present at her house but had gone to the place, where, her parental uncle resided. Immediately, thereafter, i.e. on 10.4.2003, the complainant submitted an application to Senior Superintendent of Police, Gurdaspur for registration of the case under Sections 498-A and 506 IPC against her husband-Amrik Singh, her mother-in-law, Surinder Kaur and her three sisters-in-law Paramjit Kaur, Dalbir Kaur alias Pinki and Karanjit Kaur alias Somi. The FIR was, consequently, registered on 17.5.2003. The investigation of the case was taken up and the police could not find any evidence to connect the present petitioners with the alleged crime. Accordingly, all of them were declared innocent and their names were mentioned in column No. 2 of the challan which was presented only against Amrik Singh (husband of the complainant). Further that, while passing the order under Section 319 Cr.P.C., the statement of complainant-Kamlesh Kumari was not completed as the cross-examination was still to be completed and it was in the midst of the cross-examination that the prosecution moved an application under Section 319 Cr.P.C. to summon the petitioners as additional accused. Moreover, even in the said statement, made by Kamlesh Kumari before the Court, no specific role had been attributed to any of the petitioners, other than vague and general allegations of demand of scooter and harassment of the complainant. Moreover, even in the said statement, made by Kamlesh Kumari before the Court, no specific role had been attributed to any of the petitioners, other than vague and general allegations of demand of scooter and harassment of the complainant. Accordingly, it was prayed that the impugned order passed by the trial Court, while accepting the application of the prosecution under Section 319 Cr.P.C. and summoning the petitioners as additional accused, be set aside. 6. In reply, the stand of the respondents is that sufficient evidence has come on the file to show the involvement of the petitioners in the crime and the trial Court was justified in passing an order under Section 319 Cr.P.C. to summon them as additional accused. 7. I have heard the arguments and perused the present petition and the reply, besides various documents attached with the same. 8. In the FIR itself, there was a clear mention made by Kamlesh Kumari- complainant that in December, 2001, her mother-in-law, Surinder Kaur and her three sisters-in-law, namely, Paramjit Kaur, Somi and Pinki tried to pour oil upon her but she saved her life by running away. While being examined as PW-1, said Kamlesh Kumari, reiterated that her-in-laws tried to put oil upon her. Besides, she also stated that after one month of her marriage, her husband, mother-in-law and sisters-in-law started harassing her and demanding scooter from her. The allegations regarding harassment and demand of scooter against the present petitioners were not there when the complainant had lodged the FIR. However, she was consistent in stating about the effort made by the mother-in-law and the three sisters-in-laws in trying to pour oil upon her. 9. In view of the initial version already recorded by the police as well as the subsequent version as emanating from the statement of the complainant as PW-1, there was prima facie material to proceed against the present petitioners for trying them as additional accused with Amrik Singh. 10. 9. In view of the initial version already recorded by the police as well as the subsequent version as emanating from the statement of the complainant as PW-1, there was prima facie material to proceed against the present petitioners for trying them as additional accused with Amrik Singh. 10. The stand of the defence that the FIR was registered only as counter- blast to the divorce petition filed by Amrik Singh against the complainant cannot be looked into at this stage as the parties would lead their respective evidence before the trial court and only then, the said court would be in a position to make up its mind as to whether, the registration of F.I.R. was as a counter-blast to the divorce petition or the complainant was justified in lodging the same. Similarly, the conclusion of the Investigation Agency in declaring the petitioners to be innocent, was not final as now sufficient material has appeared in evidence so as to summon the petitioners as additional accused. 11. In Rakesh Batra v. State of Haryana, 2000(4) RCR(Crl.) 10, this Court held that the powers under Section 319 Cr.P.C. could be exercised after the recording of evidence but the statement of the said witness could not be read in evidence if the accused had not been given the opportunity to cross-examine this witness. Further that, incomplete statement of a witness could not be read in evidence. It was held as follows :- "In the present case, the learned Additional Sessions Judge ordered the summoning of the petitioners as accused even without completely recording the statement of PW-2 Smt. Rakhi. On the other hand, the statement of Smt. Rakhi was made the basis for ordering the summoning of the petitioners as accused in this case. As referred to above, the cross-examination of PW-2 Smt. Rakhi on behalf of one of the accused was still in progress when the application under Section 319 Cr.P.C. was moved and thereupon, further cross- examination of the witness was deferred. No opportunity was given to the other two accused namely Naresh and Jagdish to cross-examine Smt. Rakhi, by the time when her cross- examination was deferred. Under these circumstances, it would be clear that the testimony of Smt. Rakhi could not be read in evidence even at that stage, as the accused had not been given the opportunity to cross- examine this witness. Under these circumstances, it would be clear that the testimony of Smt. Rakhi could not be read in evidence even at that stage, as the accused had not been given the opportunity to cross- examine this witness. Incomplete statement of a witness could not be read in evidence. Once the statement of PW-2 Smt. Rakhi is taken out of consideration, there would be nothing else on the record which may justify the summoning of the present petitioners as accused in this case." 12. The aforementioned decision of this Court was considered by Honble Supreme Court in Rakesh and another v. State of Haryana, 2001(3) RCR(Criminal) 681. After discussing the case law on the subject, the Court held that the term `evidence as used in Section 319 Cr.P.C. would mean even that evidence which has not been tested by cross-examination because the question of testing the evidence by cross-examination would arise only after addition of the accused. The conclusion finally arrived at, is reproduced below : "Hence, it is difficult to accept the contention of the learned counsel for the appellants that the term `evidence as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross- examination. The question of testing the evidence by cross-examination would arise only after addition of the accused. There is no question of cross- examining the witness prior to adding such person as accused. Section does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who had deposed against him and thereafter deciding whether such person is to be added as accused or not. Word "evidence" occurring in sub-section is used in comprehensive and broad sense which would also include the material collected by the investigation officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime." 13. In view of the above, it cannot be said that the statement of Kamlesh Kumari recorded in the Court, wherein, her cross-examination was not completed, cannot be used for passing an order under Section 319 Cr.P.C. 14. The order passed by the trial Court while summoning the petitioners under Section 319 Cr.P.C. as additional accused is perfectly in accordance with the settled provisions of law. The order passed by the trial Court while summoning the petitioners under Section 319 Cr.P.C. as additional accused is perfectly in accordance with the settled provisions of law. The same cannot be interfered with. 15. Accordingly, the present petition is without any merit and the same is dismissed. 16. The petitioners are women. While petitioner-Surinder Kaur (mother-in-law) is resident of village Mataur, Mohali, the three sisters-in-law are also resident of different places than Amrik Singh, husband of Kamlesh Kumari- complainant. The three sisters-in-law of the complainant are already married and residing in their respective matrimonial homes. Paramjit Kaur-petitioner is resident of village Lambian, Mohali, Dalbir Kaur alias Pinki is putting up in Delhi, whereas, Karanjit Kaur alias Somi has her resident in village Haveli, Ropar. The trial of the case is pending in the Court of Judicial Magistrate Ist Class, Pathankot. The petitioners would find it difficult to travel all the time to Pathankot for attending the proceedings. It would be in the fitness of things, if the personal appearance of all the four petitioners before the trial Court is exempted. From the records of the case, it is clear that the petitioners were summoned on 14.7.2005 for 20.10.2005. The present petition was filed on 18.8.2005. Notice of motion was issued for 3.10.2005. On that date, no one appeared on behalf of respondent No. 2 despite service. In view of the same, this Court stayed further proceedings before the trial Court. 17. Accordingly, while disposing of the present petition, this Court directs the petitioners to put in appearance before the trial Court on 14.12.2006. Upon their appearance, they will move the trial Court for being granted the benefit of bail. Once, the proceedings regarding bail are concluded, let the petitioners make an application to the trial Court for the grant of exemption from personal appearance which shall be allowed subject to any condition which the said Court may like to impose.