Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 2079 (PNJ)

Usha Mehta v. State of Punjab

2008-12-09

RANJIT SINGH

body2008
JUDGMENT Ranjit Singh, J. - Usha Mehta wife of Sudarshan Mehta has filed this revision petition challenging the order passed by Sessions Judge, Jalandhar, allowing the application of the prosecution to summon her as an additional accused to face prosecution for an offence under Section 304B Indian Penal Code alongwith her son, Sunil Mehta. 2. Sunil Mehta married Renu daughter of Subhash Chander on 30.4.2005. On 15.7.2006, Renu committed suicide by hanging. Her father Subhash Chander lodged this FIR alleging that he had given dowry as per his means but still Sunil Mehta and his mother Usha Mehta had been taunting and harassing her daughter for bringing insufficient dowry. Allegation of demand of car is also made. It is mentioned that 10 days prior to the incident, Late Renu had come to the complainant and had told that accused were pressuring her to bring car from her parents. At that time, he had allegedly given Rs. 10,000/- and sent her back to her in-laws. Late Renu had subsequently contacted her brother on telephone, complaining of tension and requested him to arrange money. 3. The case was investigated by police and challan under Section 306 Indian Penal Code was presented against Sunil Mehta, husband of deceased Renu. Usha Mehta was found innocent and shown in Column No. 2 of the report. Ultimately, the charge under Section 306 Indian Penal Code was also framed against Sunil Mehta. The complainant, however, did not feel satisfied with this and filed a revision petition before this Court for framing a charge under Section 304B Indian Penal Code instead of Section 306 Indian Penal Code. This revision petition was decided on 7.5.2007 with liberty to the prosecution to move an application for amendment of charge. Statement of Subhash Chander was recorded on 23.7.2007 wherein he reiterated all the allegations made in the FIR. Prosecution then filed an application for amendment of the charge, which was allowed, charging Sunil Mehta under Section 304B Indian Penal Code. Subsequently, an application was moved for summoning petitioner, Usha Mehta, for an offence under Section 304B Indian Penal Code, which has now been allowed. 4. While assailing the impugned order, counsel for the petitioner has made manifold submissions. The counsel would first contend that earlier order framing the charge under Section 306 Indian Penal Code passed by the Sessions Court has not been considered by the Court while summoning the petitioner. 4. While assailing the impugned order, counsel for the petitioner has made manifold submissions. The counsel would first contend that earlier order framing the charge under Section 306 Indian Penal Code passed by the Sessions Court has not been considered by the Court while summoning the petitioner. He would then refer to the suicide note left by the deceased in her own handwriting, which indicate that Renu had committed suicide due to involvement of Sunil Mehta with some girl. In this suicide note, deceased Renu had praised her mother in law i.e. the petitioner and despite this fact and the finding of the investigating agency, exonerating the petitioner, she has now been summoned under Section 304-B/34 Indian Penal Code, which offence is not made out at all. The counsel has also referred to the FSL report opining that the writing on the suicide note matches with the standard writing of the deceased Renu to say that this suicide note was required to be believed. In this context, the counsel has also referred to earlier order passed by Sessions Judge, Jalandhar, while framing a charge under Section 306 Indian Penal Code. 5. Heard the counsel for the parties. The suicide note or the earlier order passed by the Sessions Court in framing a charge under Section 306 Indian Penal Code and now amending the charge under Section 304B Indian Penal Code can not be appropriately pressed into service to impugn the order under challenge. The order framing the charge under Section 306 Indian Penal Code was challenged before this Court, when the complainant was given liberty to move an application under Section 216 Criminal Procedure Code, which the Trial Court was to consider in the light of the evidence produced before it. It is in this light that the charge framed against Sunil Mehta was amended from Section 306 Indian Penal Code to Section 304B Indian Penal Code. Sunil Mehta had impugned the said order, amending the charge framed against him by filing a Criminal Revision No. 1617 of 2007, out-come of which is stated to be pending. Now the petitioner has been summoned as an additional accused to face prosecution with Sunil Mehta. Thus, the factum of suicide note and earlier charge preferred under Section 306 Indian Penal Code is not a relevant matter or invite consideration while considering the challenge raised by the petitioner to the impugned order. Now the petitioner has been summoned as an additional accused to face prosecution with Sunil Mehta. Thus, the factum of suicide note and earlier charge preferred under Section 306 Indian Penal Code is not a relevant matter or invite consideration while considering the challenge raised by the petitioner to the impugned order. What is required to be seen is whether there is now sufficient evidence available for summoning the petitioner as an additional accused alongwith her son, who is already facing prosecution and has been charged for an offence under Section 304B Indian Penal Code. The submission of counsel for the petitioner that finding of the investigating agency and the statement recorded under Section 161 Criminal Procedure Code should also receive consideration, would not be a sound appreciation of legal position. 6. Whatever may be the standard laid down by the Honble Supreme Court for summoning a person as an additional accused, but this can only be done on the basis of evidence that is led and not on any other material. In Rajendra Singh v. State of U.P. & Anr., 2007(4) RAJ 305, the Honble Supreme Court has observed that statement of the witnesses recorded under Section 161 Criminal Procedure Code being wholly inadmissible in evidence could not at all be taken into consideration. The order passed by the High Court, wherein it had relied upon inadmissible evidence to set aside the order passed by the Sessions Judge was accordingly set-aside by the Honble Supreme Court. It is also observed that no finding on the plea of alibi can be recorded by the High Court for first time in a petition under Section 482 Criminal Procedure Code It is also observed that the burden to prove the plea of alibi lay upon an accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Criminal Procedure Code 7. Undoubtedly, the power given to the Court under Section 319 Criminal Procedure Code is a discretionary power to be exercised by the Court. Undoubtedly, the power given to the Court under Section 319 Criminal Procedure Code is a discretionary power to be exercised by the Court. The legislature apparently has left discretion to the trial Court to summon or not to summon additional accused while exercising power under Section 319 Criminal Procedure Code The Court is given a judicial discretion which is to be exercised by the judicially trained mind and accordingly it would basically be for a Court deciding such an application which has to take a decision on the basis of law and the evidence. 8. Thus, the exercise of discretion under the section is a judicial discretion and judicially trained mind is to exercise it and it is the trial court, deciding such an application which has to take a decision on the basis of law and the evidence. 9. The standard of evidence and material that would be required to summon any person as an additional accused by now is rather well settled. In cases of Joginder Singh v. State of Punjab, (1979)1 SCC 345, Michael Machado v. Central Bureau of Investigation, 2000(2) RCR(Criminal) 75, Municipal Corporation of Delhi v. Ram Kishan Rohtagi, 1983(1) RCR(Crl.) 73 and Krishnappa v. State of Karnataka, 2004(3) Apex Criminal 643. this standard has been well defined. 10. What should be the nature of evidence to add a person as an additional accused has been a matter of consideration before the Honble Supreme Court in the cases noted above noted and in some other cases. In Joginder Singhs case (supra), the Honble Supreme Court has inter-alia held that the court will have power to add any person, not accused before it, but against whom there appears during trial sufficient indication for his involvement in the offence. In Michael Machados case (supra), it has been held that the court must have reasonable satisfaction from the evidence led x that other person has committed an offence and there is prospect of his conviction. In Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RAJ 534, the court had observed that such power can be exercised only if the court is satisfied that the accused so summoned is in all likelihood would be convicted. In Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RAJ 534, the court had observed that such power can be exercised only if the court is satisfied that the accused so summoned is in all likelihood would be convicted. In a recent decision of the Honble Supreme Court in the case of Hardeep Singh v. State of Punjab & Ors., 2008(6) RAJ 342 the court noticed all these judgments and has observed that test formulated in Mohd.Shafis case substantially curtailed discretionary powers of the court conferred under sub-section (1) of Section 319 Criminal Procedure Code The Court has accordingly found that matter requires fresh consideration and has referred the following two issues to a larger bench : "(1) When the power under sub-section (1) of Section 319 of the Code of addition of accused can be exercised by a Court ? Whether application under Section 319 is not maintainable unless the cross-examination of the witness is complete ? (2) What is the test and what are the guidelines of exercising power under sub-section (1) of Section 319 of the Code ? Whether such power can be exercised only if the Court is satisfied that the accused summoned in all likelihood would be convicted?" 11. While referring the issues to the larger Bench, the Honble Supreme Court in the case of Hardeep Singh (supra,) was of the view that the observations in Mohd. Shafis case (supra) do not appear to be in consonance with the statutory provisions and the previous decisions of the court. It has further observed that bare reading of sub-section (1) of Section 319 would leave no room of doubt what the section requires. The Section states, it must appear, to the court from the evidence that any person not being the accused has committed an offence for which such persons should be tried along with other accused. 12. In recent decision in the case of Rajendra Singh (supra), one judge of the Division Bench while agreeing with the reasoning given in the case has expressed his view in regard to Section 319 Criminal Procedure Code The learned Judge has emphasised the word "appears" used in the section to say that court need not be satisfied that the person has committed an offence and it need only appear to it that he has committed an offence. 13. 13. From the plain language of Section 319 Criminal Procedure Code, it can be said that what is to be considered is an evidence and not a statement. If any statement made before police and considered by it to give finding is to be given primacy, then the provisions of Section may become redundant. To somewhat similar effect, observations are made by Honble Supreme Court in the case of Y. Saraba Reddy v. Puthur Rami Reddy & Anr., 2007(3) RAJ 69. In this case, it is observed :- "If the satisfaction of the Investigating Officer or Supervising Officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the Investigating Officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IOs satisfaction should be given primacy is unsustainable." 14. This court in Rajbir Singh v. State of Haryana and others, 2006(2) ILR Punjab and Haryana 902 has observed that the statement on oath would obviously stand on higher pedestal than a statement made before the police and, therefore, is to be assigned due primacy. 15. Each case is to be decided on the facts of its own. An authority has to be understood in the context of facts, based on which the observations therein are made. 16. The Trial Court while summoning the petitioner as an additional accused has observed that evidence must be sufficient to make out prima-facie case against such a person and satisfy all the essential ingredients constituting the offence for which he or she is sought to be prosecuted. Having said so, the court has also observed that is duty bound to summon such a person as an additional accused to stand her trial alongwith other accused and that it appears that the petitioner also committed an offence punishable under Section 304B Indian Penal Code. No doubt, in some of the recent cases, the standard laid down in Michael Machados case (supra) and Mohd. No doubt, in some of the recent cases, the standard laid down in Michael Machados case (supra) and Mohd. Shafis case (supra) has been diluted and the matter is now referred to larger Bench for consideration but it may still require consideration whether this standard would satisfy the requirement of law to summon the petitioner as an additional accused in view of the law laid down in the cases of Michael Machados case (supra) and Mohd. Shafis case (supra) and other cases as referred to above. The Trial Court obviously has gone by the test that it appears that the petitioner is involved in the commission of offence. Will this test suffice or likelihood of conviction, would be needed, is the question which would need consideration of the Trial Court to add the petitioner as additional accused The Trial Court may be required to reconsider the whole issue in the light of the above noted legal position and see if the evidence would satisfy the test to summon the petitioner as an additional accused. It may have to be noted that observations in Rajendra Singhs case (supra) are by Honble one Judge constituting the Bench. 17. The case is accordingly remitted back to the Trial Court to re-consider the evidence and to pass an order afresh to either summon or decline summoning of the petitioner as an additional accused. This Court has not expressed any opinion on merits and it shall be entirely in the discretion of the Court to re-decide the whole issue in the light of various judgments passed by the Honble Supreme Court and other law that may be placed before that Court. 18. The present petition is accordingly disposed of. Order accordingly.