[CASE NUMBER] (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh [CASE NUMBER] (O&M) Date of decision: 7.5.2009 [ENTITY] Petitioner Versus [ENTITY] and others Respondents CORAM: HON'BLE MRS. JUSTICE [ENTITY] Present: Mr.[ENTITY], Advocate and Mr.[ENTITY], Advocate, for the petitioner. [ENTITY], J.
This petition has been filed by [ENTITY] under [SECTION] of the [ACT] ("[ACT] for short) for quashing the impugned judgment dated 20.1.2009 (Annexure P-2) passed by Additional Sessions Judge, Rewari vide which the order dated 15.10.2007 (Annexure P-1) passed by the Judicial Magistrate, Ist Class, Rewari summoning the accused-respondents No.2 and 3 summoning under [SECTION] [ACT] has been set aside.
Prosecution story as per the FIR (Annexure P-5) reads as under:-
1. That the applicant had married his daughter named [ENTITY] with [ENTITY] son of Sh. [ENTITY] resident of Village [ENTITY], District Mohindergarh, on 23-6-1999 according to Hindu rites at village pali Tehsil and District Rewari. I had spent the amount of about Rupees Two lacs at this marriage beyond my capacity; list of dowry is attached with the application. (2) That just after the marriage [ENTITY], his mother named [ENTITY] and his father, [ENTITY], used to beat, harass and torture to my daughter [ENTITY] for bringing less dowry. [ENTITY], reaching at home, told this matter to me and her mothering July 1999 that [ENTITY] and his mother and father were unhappy from the scooter given in the marriage and were saying that bring an amount of Rupees 52,000/-, we will purchase Bullet Motor Cycle of our own choice. My daughter said that my father is not capable for this, and then they beat my daughter in this regard many times.
On informing by my daughter, I along with my brother [ENTITY], taking [ENTITY] along with us went [ENTITY] and handed over rupees 25,000/- to [ENTITY] and his mother and father and told them that we have only this capacity and now we have arranged only this amount and will give in future accordingly, left the daughter there and returned to home. Thereafter they kept quite our daughter for some days but later on they treated her in the same behavior. In the moth of August 2000, I sent my son named [ENTITY] to [ENTITY] for bringing [ENTITY] and [ENTITY] came with him. [ENTITY] was pregnant at that time. Reaching at home she told us that her mother in law has asked me to bring the expenses for going there from your home otherwise it is no need to come my house. At this I along with my brothers went to [ENTITY] and asked to in laws of [ENTITY] that socially, the expenses of going, is comes to your share. We will give much more in Chhuchak (rattan). [ENTITY] was sent to [ENTITY] with [ENTITY] on 23 October. [ENTITY] brought back to daughter on 25 October where she suffered from the delivery pain then we brought her to. Dr. [ENTITY] hospital at Rewari and [ENTITY] gave birth to a girl child here trough operation, all the expenses were met here, by us, which were about an amount of Rs. 13,000/-. We went the items with the items worth Rs. 15,000/- were given in Chhuchhak (rattan), then they were unhappy from it, then we gave an amount of Rs 10,000/- in cash. During the month of December, [ENTITY] came to village Palli with my brother [ENTITY]. Thereafter, [ENTITY] did not come to take my daughter, [ENTITY]. On sending the repeated messages, parents of [ENTITY] and [ENTITY] said that, they will arrange a second marriage for him, in which largess free gifts and more dowries will be received. At this, I pressurized upon them through my relatives and send daughter, [ENTITY] to her in laws on 18th July 2003. After this, in October 2003 at the eve of Dewali festival, [ENTITY] was called through my son [ENTITY], daughter was pregnant. After checking by Doctor from Rewari, it is found that there are three babies in her abdomen and doctor advised her for good diet and full rest. I send many messages to [ENTITY] or taking the daughter there but at the repeated requests [ENTITY] came to village Palli in December month and he said that if you will give me expenses for going then I will take [ENTITY] otherwise not at which I arranged and amount of Rs. 10,000/- and given to [ENTITY]. Next day [ENTITY] went to [ENTITY] along with my daughter (3) That on 17 Jan 2004, [ENTITY] send a boy of his village to my house and said that [ENTITY] is sick, take her to Rewari, taken to Rewari hospital, after which I, my wife and my brother [ENTITY] came to Rewari and searched in private hospitals but [ENTITY] was not admitted any where, latter on we went to Government hospital and found [ENTITY] admitted there. [ENTITY], his mot her [ENTITY] and his father Ghor Dhan were also present in the hospital, we said that get her admitted in a private hospital then they said that we have no money at all for useless expenses and we have brought her to Government hospital for our safety, that if she died then we will be safe. The condition of the daughter was critical, doctor told that due to non providing of good diet, she came in such a condition and advised for taking [ENTITY] at Delhi, in spite of refusing by them, we taken [ENTITY] to Sucheta Kirplani hospital and get her admitted there. [ENTITY] gave birth to three babies there and [ENTITY], his mother and father made a pretext and gone to their village. Expenses of Delhi hospital were also met by me; two out of three children had died and [ENTITY] was discharged in the month of March and we brought her to our house at Palli. After it, in spite of sending many messages, no one came there. Latter on I come to know that [ENTITY], [ENTITY] and [ENTITY], has come to the maternal village of [ENTITY] at Nannda in Rewari district. At this I along with my brother [ENTITY] and [ENTITY] son of [ENTITY] and Mania son of [ENTITY], residents of village Palli, went to village Nannda on 10 July and requested them for taking of my daughter and made efforts to get them understood but all the three refused totally and said that not they will not bring [ENTITY], in any circumstances because she gave birth to daughters only and you had not came to give anything and the free items and dowry which were given to us, some of that we have already wasted and the remaining also will not be given back. Saying so, disgraced us and sent us back. Therefore, it is requested to you that action may be taken against the accused and be get awarded punishment to them."
After investigation of the case, challan was presented against accused [ENTITY]. So far as his parents-respondent Nos. 2 and 3 are concerned, they were placed in column No.2 of the final report. Prosecution moved an application under [SECTION] [ACT] for summoning respondent Nos. 2 and 3 and vide order dated 15.10.2007 (Annexure P-1), learned Judicial Magistrate, Ist Class, Rewari ordered that respondent Nos. 2 and 3 be summoned to face the trial. Aggrieved by the said order, respondent Nos. 2 and 3 preferred a revision petition and learned Additional Sessions Judge, Rewari vide impugned order dated 20.1.2009 (Annexure P-2) allowed the revision petition. Hence, the present petition.
Marriage between [ENTITY] and deceased [ENTITY] was solemnized on 23.6.1999. FIR in question was lodged on 31.8.2004 with regard to the harassment meted out to deceased [ENTITY] by her husband and his family members.
It has been held by the Apex Court in the case of [PRECEDENT] as under:-
11.The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects.
First is that the other person has committed an offence. Second is that for such offence that other person could be as well as tried along with the already arraigned accused.
12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words " the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons.
13. In Municipal Corporation of Delhi v. [ENTITY] Rohtagi and another., 1983 (1) RCR (Criminal) 73:
1883 (1) SCC 1 this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned:
" But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken."
14. The Court while deciding whether to invoke the power under [SECTION] of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commended from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action." It has been held by the Apex Court in the case of [PRECEDENT] as under:-
"[SECTION] of the Code is a special provision. It seeks to meet an extraordinary situation. It although confers a power of wide amplitude but is required to be exercised very sparingly. Before an order summoning an accused is passed, the trial court must form an opinion on the basis of evidence brought before it that a case has been made out that such person could be tried together with the other accused. There is no dispute with the legal proposition that even if a person had not been charged- sheeted, he may come within the purview of the description of such a person as contained in [SECTION] of the Code.
The approach of the learned Sessions Judge was wholly incorrect. The principle of strong suspicion may be criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under [SECTION] of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction."
A perusal of the FIR as well as the statement of the complainant, while appearing in the witness box as PW-1, (Annexures P-5 and P-3 respectively) reveals that the allegations against respondent Nos. 2 and 3 are general in nature. Respondent No.2 and 3 were found innocent during investigation. In these circumstances, the impugned order passed by the learned Additional Sessions Judge, Rewari (Annexure P-2) calls for no interference.
Accordingly, this petition is dismissed.
([ENTITY]) JUDGE May 07, 2009 anita