Crl. Rev. No.1489 of 2009 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. Crl. Rev. No.1489 of 2009 (O&M) Date of decision: 30.5.2009 [ENTITY] and another Petitioners Versus [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate, for the petitioners. [ENTITY], J.
The petitioners, who have been summoned to face trial in exercise of powers under [SECTION] [ACT], have challenged the order on the grounds inter alia that they have been found innocent after thorough investigation, but they have been summoned on the basis of same statement which was subject matter of investigation and the petitioner/accused cannot be summoned merely on the ground of suspicion.
Brief factual background of the case is that one [ENTITY] wife of [ENTITY] alleged that on 10th July, 2008, [ENTITY], petitioner No.1 (maternal uncle of husband of the complainant) and [ENTITY] (petitioner No.2) wife of [ENTITY] came to their house at 7/8 P.M. On 11th July, 2008 at about 3.30 A.M. before the complainant woke up, her mother-in-law [ENTITY], her husband [ENTITY] and the uncle and aunt aforesaid were already awake. They woke up the complainant and forcibly took her in kitchen and pushed her inside. At that time, there was smell of gas in the kitchen. The mother-in-law lit a match stick and threw it in the kitchen. Due to this reason, clothes of the complainant caught fire. Nobody helped the complainant. The uncle and aunt ([ENTITY] and [ENTITY]) left on a motor cycle. The complainant herself extinguished the fire with the help of a blanket. Thereafter, she was admitted to hospital by mother- in-law, husband and another person. The complainant alleged that the motive to set her on fire was demand of dowry, particularly a car. The complainant suffered serious burn injuries on her stomach, thighs, back and left arm.
The police after investigation, put in challan against mother-in-law [ENTITY] and husband [ENTITY]. However, it gave clean chit to the petitioner [ENTITY] and his wife [ENTITY] despite clear allegation by the complainant that she was set on fire in connivance with these persons. The complainant [ENTITY] stepped into the witness-box as PW1 and repeated the same version as initially given in the FIR.
The complainant stood by her statement that the petitioners had hatched conspiracy with the other accused and had woken up her at 3.30 A.M. on 11th July, 2008. Thereafter, all of them had pushed her into kitchen where cooking gas had already spread as the gas cylinder was already on. Then her mother-in-law lit a matchstick and threw into the kitchen resulting into severe burn injuries to the complainant. The complainant was partly cross-examined by the defence counsel but not much dent could be made in her statement. The trial court, therefore, decided to summon the additional accused (petitioner) in exercise of powers under [SECTION] [ACT]
Learned counsel for the petitioner has referred to various judgments in support of his contention that petitioners could not be summoned in the instant case in exercise of powers under [SECTION] [ACT] He has referred to judgment reported as [ENTITY] @ Tejwinder Kaur and another Vs. [ENTITY] through [PRECEDENT], [ENTITY] Vs. Hardial Singh, 1999 (2) R.C.R. (Criminal) 165, [ENTITY] and another Vs. State of Haryana and another, 2007 (3) R.C.R. (Criminal) 141, [ENTITY] Vs. [ENTITY] & others, 2008 (4) R.C.R. (Criminal) 947 and [ENTITY] v. Mohd. Rafiq & Anr., 2007 (2) RCR (Criminal) 762.
I have heard learned counsel for the petitioner and carefully examined the facts as well as the law as cited before this court.
In [ENTITY]'s case (supra), this court was pleased to hold that summoning of additional accused cannot be merely on the basis of doubt or vague allegations. There can be no dispute with the proposition laid down in the said judgment. However, in the present case, the complainant has levelled clear cut allegations of involvement of the petitioners. Her statement does not appear to be a result of doubt or suspicion. On the other hand, in [ENTITY]'s case (supra), the FIR was lodged by mother of the deceased after 23 days of death of her daughter in which allegations of harassment were levelled against the in-laws of the deceased, leading to registration of a case under [SECTION] [ACT]. In my considered view, facts of the said case do not have any bearing on the present case as in this case lodger of the FIR [ENTITY], the complainant herself, sustained burn injuries but survived.
In [ENTITY]'s case (supra), relied upon by the learned counsel, it was held that a person cannot be summoned under [SECTION] [ACT] unless the cross-examination of said person has been completed. According to the said judgment, such deposition is legally inadmissible in evidence. In the instant case, however, the trial court in the impugned order has observed that the complainant was partly cross- examined but nothing worthwhile came on record which would shatter her testimony. Even otherwise, it is inexplicable as to how the petitioners would be in a position to cross-examine the complainant unless they appear before the trial court pursuant to their summoning.
Another judgment relied upon by counsel for the petitioners in [ENTITY]'s case (supra) is also, in my considered view, not applicable to the facts of the present case. In the said case, the court observed that the application moved by the complainant shows that he was merely suspicious of the role of the petitioners. In the said case, daughter of the complainant died in her matrimonial home. The complainant alleged that his daughter had been strangulated by her husband and two other members of the family. The court came to the conclusion that it was merely a suspicion of father of deceased. In the instant case, however, FIR has been lodged by the complainant herself, who has clearly elaborated the role played by the petitioners in the commission of crime. By no stretch of imagination, it can be said that her version is based on suspicion or doubt. Even after stepping into the witness-box, she maintained the same stand qua the petitioners as narrated to the police at the time of registration of the FIR.
Lastly, the learned counsel has referred to the judgment of the Hon'ble Supreme Court reported as [ENTITY]'s case (supra). According to the counsel, the matter as regards guidelines to be followed for summoning an accused under [SECTION] [ACT] has already been referred for consideration to a Bench of three Hon'ble Judges. Even the question whether application under [SECTION] [ACT] is maintainable unless cross-examination of a witness is complete, is part of the referral order. On a pointed inquiry by this court whether any interim directions have been issued by the apex court in the referral order, the answer of the counsel is in the negative.
Though the question whether application under [SECTION] [ACT] is maintainable unless cross-examination of the witness is complete, has been referred to a larger bench by the Hon'ble Apex Court and is yet to be answered, it may be relevant to briefly refer to [ENTITY]'s case (supra). In the said case, the application for summoning under [SECTION] [ACT] was moved by a witness. This witness had reached the spot after the incident had taken place. The Sessions Court was thus not inclined to summon additional accused merely on the basis of examination-in-chief of this witness and decided to wait for his cross- examination. The High Court, however, allowed the application for summoning, which was set-aside by the Hon'ble Supreme Court. The Court observed as under:-
"12. The trial Judge, as noticed by us, in terms of [SECTION] of the [ACT] was required to arrive at his satisfaction. If he thought that the matter should receive his due consideration only after the cross-examination of the witnesses is over, no exception thereto could be taken far less at the instance of a witness and when the State was not aggrieved by the same.
13. From the decisions of this Court, as noticed above, it is evident that before a court exercises its discretionary jurisdiction in terms of [SECTION] of the [ACT], it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. Such satisfaction can be arrived at inter alia completion of the cross-examination of the said witness. For the said purpose, the court concerned may also like to consider other evidence. We are, therefore, of the view that the High Court has committed an error in passing the impugned judgment. It is accordingly set aside. The appeal is allowed."
From the observation of the apex court it is obvious that in the peculiar facts and circumstances of the case, the apex court came to the conclusion that it was desirable to wait for the cross-examination of the witness sought to be summoned under [SECTION] [ACT], particularly when summoning had not been sought by the State. The apex court observed that discretionary jurisdiction under [SECTION] of the [ACT] is to be judicially exercised after court comes to the conclusion that there is possibility of conviction of the accused so summoned and that such satisfaction can be arrived at inter alia on completion of cross-examination of the said witness. Thus it is clear that while deciding to summon additional accused, the court may rely inter alia on cross-examination of a witness. In the present case, the witness, who is the complainant herself, has already been partly cross- examined and according to the trial court, her testimony has not been shattered in any way. Moreover, summoning has been sought by the Additional Public Prosecutor for the State and not by a witness. Thus, the judgment in [ENTITY]'s case (supra) cannot help the petitioners in support of their plea that impugned order summoning additional accused be quashed. This case ([ENTITY]) was cited before the Allahabad High Court ([PRECEDENT] while impugning a similar order passed under [SECTION] [ACT] Dismissing the petition, the Court observed as follows:-
"4. In my view this contention of the learned counsel is based on a mis-reading of the aforesaid decision. The said decision only mentions that discretion to summon an accused must be judicially exercised and that the Court should arrive at a satisfaction that a prima facie case is made out against an accused.
5. Further more, [ENTITY], [PRECEDENT] (supra) was a case where the learned Sessions Judge was not satisfied after the examination-in-chief of the witness P.W. 1 because the witness in that case stated that he has subsequently arrived at the spot. It was in that situation that, the Court had insisted that there should be more material against the accused."
In recent judgment reported as Bholu Ram v. [ENTITY], 2008 (4) R.C.R. (Criminal) 187 the apex Court has observed as under:-
"21. Sometimes a Magistrate while hearing a case against one or more accused finds from the evidence that some person other than the accused before him is also involved in that very offence. It is only proper that a Magistrate should have power to summon by joining such person as an accused in the case. The primary object underlying [SECTION] is that the whole case against all the accused should be tried and disposed of not only expeditiously but also simultaneously. Justice and convenience both require that cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. The power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice.
22. It is also settled law that power under [SECTION] can be exercised either on an application made to the court or by the court suo motu. It is in the discretion of the court to take an action under the said section and the court is expected to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case.
In the facts and circumstances of the case, particularly the statement of the complainant and the fact that in the part cross-
examination conducted on behalf of the accused, already charged in the case, not much dent has been made in her testimony, I do not find it a fit case for exercise of power in revisional jurisdiction for setting aside the impugned order. Learned counsel has not been able to point out any legal infirmity with the said order.
No other point has been addressed.
This revision petition is hereby dismissed.
([ENTITY]) JUDGE May 30, 2009 'rajpal' To be referred to the Reporters or not: Yes / No