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2012 DIGILAW 1658 (PNJ)

Inder Singh v. State of Haryana

2012-11-29

SABINA

body2012
JUDGMENT SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure 1973, Cr.P.C. for short), challenging the order dated 31.8.2012, whereby the application moved by the prosecution under Section 319 Cr.P.C. for summoning respondents No.2 to 5 as additional accused was dismissed. Learned counsel for the petitioner has not pressed the petition qua respondents No.2, 3 and 5. Consequently, this petition qua respondents No.2, 3 and 5 is dismissed as not pressed. Learned counsel for the petitioner has further submitted that so far as respondent No.4 Dinesh is concerned, the complainant had specifically stated before the police that respondent No.4 Dinesh was armed with an iron rod at the time of occurrence and had given a blow with the same on the head of his wife. The complainant as well as injured Santosh, while appearing in the witness box, have deposed with regard to the fact that respondent No.4 Dinesh had given an iron rod blow on the head of Santosh. The said injury was duly corroborated by the medical evidence. The trial Court had erred in dismissing the application moved by the prosecution for summoning respondent No.4 Dinesh as an additional accused because there was sufficient material on record to proceed against respondent No.4 Dinesh as an additional accused. Learned counsel for respondent No. 4, on the other hand, has opposed the petition. Learned counsel for respondent No.4 has submitted that respondent No.4 Dinesh was rightly found innocent during investigation. Further no new material had come on record during trial, which would necessary to invoke the provisions under Section 319 Cr.P.C. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be partly allowed. Section 319 Cr.P.C. reads as under:- “Power to proceed against other persons appearing to be guilty of offence:- 1) where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. 2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. 2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. 3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. 4) Where the Court proceeds against any person under sub-section (1) then a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard. b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” It has been held by the Apex Court in case Suman Vs. State of Rajasthan and another, (2010) 1 Supreme Court Cases 250 as under:- “A reading of the plain language of Section 319(1) CrPC makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of Section 319(1) CrPC from which it can be inferred that a person who is named in the FIR or complaint but against whom charge sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offence for which he could be tried together with the other accused.” “The process issued against the appellant under Section 319 CrPC cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her. A person who is named in the FIR or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against under Section 319 CrPC if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused.” “The Magistrate had objectively considered the entire matter and judiciously exercised discretion under Section 319 CrPC for taking cognizance against the appellant. The issue of summons against the appellant was not an abuse of the process of the court. While deciding the application filed under Section 319 CrPC, the Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law and sister-in-law had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated the complainant’s husband to inflict physical torture upon her, which were supported by the statements recorded by the police under Section 161 CrPC and by the Magistrate under Section 164 CrPC. In her complaint Respondent No.2 alleged that after one week of the marriage, her mother-in-law and sister-in-law (the appellant) told her that in the marriage, items like scooter, fridge, air conditioner, etc. were not given and the marriage party was not served well and that on the instigations of the mother-in-law and the appellant sister-in-law, the husband gave beating with the belan, and the appellant forcibly removed the rings.” “The complainant clearly spelt out the role played by the appellant and made a specific mention about this in the letters written to her parents and the Magistrate opined that a prima facie case was made out for issuing process against the appellant. The father and mother of respondent No.2 and four other persons, whose statements were recorded under Section 161 CrPC, clearly spelt out the role played by the appellant in harassing Respondent No.2 and instigating the complainant’s husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand of dowry or harass Respondent No.2 because the appellant was living with her husband. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand of dowry or harass Respondent No.2 because the appellant was living with her husband. Therefore, the trial of the appellant should proceed and should be decided expeditiously” “The High Court broadly referred to the factual matrix of the case and held that the orders passed by the Magistrate and Sessions Judge did not suffer from any illegality or perversity warranting interference under Section 482 CrPC. The approach adopted by the High Court is in consonance with the settled law. Although at one stage, the Sessions Judge allowed the revision filed by the appellant and declared that in view of the bar of limitation contained in Section 468 CrPC, the Magistrate could not have taken cognizance against the appellant, the said order was set aside by the High Court and the matter was remitted for fresh disposal of the revision petition. In the post remand order passed by him, the Sessions Judge independently examined the entire record and held that prima facie case was made out for initiating proceedings against the appellant herein under Section 498-A IPC.” In the present case, a perusal of the FIR reveals that complainant Inder Singh has specifically stated that respondent No.4 was armed with an iron rod at the time of occurrence and had given a blow with the same on the head of his wife Santosh. The complainant, while appearing in the witness box as PW-2, has deposed with regard to the said fact. Injured Santosh, while appearing in the witness box as PW-1, has also categorically deposed that Dinesh had given her an iron rod blow on her head. The statements of the complainant as well as injured Santosh in this regard are duly corroborated by the medical evidence. In these circumstances, the trial Court erred in dismissing the application moved by the prosecution under Section 319 Cr.P.C. with regard to summoning of respondent No. 4 Dinesh to face the trial as an additional accused. In fact, there was sufficient material before the trial Court to summon respondent No.4 Dinesh to face the trial as an additional accused. Accordingly, this petition is partly allowed. In fact, there was sufficient material before the trial Court to summon respondent No.4 Dinesh to face the trial as an additional accused. Accordingly, this petition is partly allowed. The impugned order dated 31.8.2012 is modified to the extent that the application moved by the prosecution under Section 319 Cr.P.C. is partly allowed and respondent No. 4 Dinesh be summoned to face the trial as an additional accused.