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2013 DIGILAW 110 (PNJ)

Diwan Singh v. State of Haryana

2013-02-04

SABINA

body2013
JUDGMENT Mrs. Sabina, J.: - Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’ for short) challenging the order dated 13.5.2010 (Annexure P-2) whereby they were ordered to be summoned to face the trial under Section 319 Cr.P.C. and the order dated 25.5.21011 (Annexure P-5) whereby their revision petition against the order (Annexure P-2) was dismissed. 2. After hearing the learned counsel for the parties and the learned State counsel, I am of the opinion that the instant petition deserves dismissal. 3. FIR No. 79 dated 19.10.2003 was registered at Police Station Jatusana, District Rewari under Section 148, 149, 323, 452, 506 of the Indian Penal Code, on the basis of the statement of complainant Vinod Kumar. 4. Prosecution story, in brief, is that at about 2.30 P.M., on 19.10.2003, Jai Singh, Inderjeet, Poonam, Subhash, Diwan Singh, Rambir, Lal Singh, Urmila Devi, Mahavir and Bullar Ram armed with jelly, farsi and lathi, came to the well near Killa No. 4 of the complainant and were about to lift the khad (fertilizer) lying there belonging to the complainant. When the complainant told them not to do so, they started abusing him. Complainant immediately entered his room. The assailants also entered the room. Jai Singh caused injury on the head and left hand of the complainant with jelly. Subhash gave a jelly blow on the head of the complainant. Diwan gave farsi blow on the little finger of the left hand of the complainant. Babu Lal and Rambir dragged the complainant from the room. Mahesh caused injury with a lathi on the nose of the complainant. Inderjeet gave a lathi blow on the left eye of the complainant. Mahavir gave a lathi blow on the left elbow of the complainant. The said persons also caused injuries on the person of Birmati, Vidya Devi, Dharm Singh and Om Parkash (uncles of the complainant). 5. After investigation of the case, challan was presented against eight accused. However, petitioners and some of their co-accused were not challaned by the police. During the pendency of the trial, prosecution moved an application under Section 319 Cr.P.C. for summoning the said accused, who had been placed in column No. 2, to face the trial as additional accused. 6. Vide order dated 13.5.2010 (Annexure P-2), the Trial Court ordered the summoning of the petitioners to face the trial as additional accused. During the pendency of the trial, prosecution moved an application under Section 319 Cr.P.C. for summoning the said accused, who had been placed in column No. 2, to face the trial as additional accused. 6. Vide order dated 13.5.2010 (Annexure P-2), the Trial Court ordered the summoning of the petitioners to face the trial as additional accused. The said order was challenged by the petitioners by way of a revision petition. However, the said petition was dismissed by the Court of Revision vide impugned order dated 25.5.2011 (Annexure P-5). Hence, the present petition by the petitioners. 7. 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. (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.” 8. Thus, as per the above provision, the Trial Court may summon any person to face the trial as an accused if there is sufficient material available against the said person during trial to proceed against him. 9. It has been held by the Apex Court in case Suman Vs. Thus, as per the above provision, the Trial Court may summon any person to face the trial as an accused if there is sufficient material available against the said person during trial to proceed against him. 9. It has been held by the Apex Court in case Suman Vs. State of Rajasthan and another, [2009(6) Law Herald (SC) 3902] : (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. 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 motherin- 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. 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. 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.” 10. In the present case, complainant had specifically stated in his statement before the police that petitioner Diwan had given a farsi blow on the little finger of his left hand from reverse side. Petitioner Babu Lal had dragged him from his house. All the accused had caused injuries on his person as well as to his family members. The complainant, while appearing in the witness box as PW-1, has deposed as per his statement in the FIR. Thus, there was sufficient material before the Trial Court to summon the petitioners to face the trial as additional accused. Petitioners were duly named in the FIR. 11. It is a settled proposition of law that the petitioner cannot invoke jurisdiction of this Court under Section 482 Cr.P.C. after dismissal of his revision by the Sessions Court as it would amount to a second revision. However, in a case of grave injustice, this Court can interfere under Section 482 Cr.P.C. 12. In the present case, no grave miscarriage of justice has occurred which would warrant interference by this Court under Section 482 Cr.P.C. 13. Keeping in view the facts and circumstances of the present case, no ground for interference is made out. Dismissed.