[CASE NUMBER] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision : 30.09.2014 [ENTITY] Petitioner Versus [ENTITY] and others Respondents CORAM: HON'BLE MS. JUSTICE [ENTITY] 1. Whether Reporters of the local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. [ENTITY], Advocate for the petitioner Mr. [ENTITY], DAG Haryana Mr. [ENTITY], Advocate for respondent No. 2 [ENTITY], J.
This revision has been directed against the order dated 18.01.2014 vide which the application filed under [SECTION] [ACT] for summoning the additional accused was dismissed by the Additional Sessions Judge, Karnal.
The factual scenario; [ENTITY] lodged a complaint with the police on the basis of which FIR No. 565 dated 18.07.2013 under [SECTION] [ACT] was registered at Police Station Civil Lines Karnal. [ENTITY]'s daughter [ENTITY] was married to [ENTITY]. The complainant had given sufficient dowry in the marriage but her in- laws were not happy with it. The complainant named the sister-in- REENA law [ENTITY], [ENTITY] husband, father-in-law, mother-in-law besides [ENTITY] (Mausi) and [ENTITY] (Devar) of [ENTITY]. The allegations were that they used to throw taunts for not bringing a car and pressurized her for bringing a gold chain. The complainant had also mentioned that she had got the old Bed and Sofa changed in order to keep her daughter happy but the in-laws harassed her repeatedly. The complainant received a telephonic message on 18.07.2013 that her daughter was no more. The complainant alongwith her family reached the matrimonial house of her daughter and found her body lying on the floor. The police investigated into the complaint and found [ENTITY] and [ENTITY] to be innocent. The remaining persons named by the complainant were arrested and were challaned.
The case was committed, charge was framed, statement of the complainant had been recorded when an application under [SECTION] [ACT] was moved.
The trial Court after hearing parties dismissed the application.
I have heard learned counsel for the parties, I am of the opinion that the instant petition deserves dismissal.
The petitioner had sought to summon [ENTITY] and [ENTITY]. They had been found innocent during investigation and were kept in column No. 2 at the time of presentation of challan. This revision had been filed for setting aside the order passed by the Additional Sessions Judge but at the initial hearing, the counsel for the petitioner submitted that he did not press the petition qua respondent No. 3. The revision petition was dismissed qua [ENTITY] - respondent No. 3.
Annexure P-1 is the statement made by [ENTITY] before the trial Court where she had deposed that she had given sufficient dowry at the time of marriage but the accused were not satisfied with the dowry and thereafter [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] started harassing and torturing her daughter and they used to demand dowry. She had stated that accused persons made a demand of car and on their demand she had replaced the sofa set and bed which were given at the time of marriage as was desired by the six persons named by her. She stated that she was telephonically informed by [ENTITY] about death of her daughter.
[SECTION] [ACT] reads as under:-
"319. 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 a fresh, and the 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."
The trial Court has power to summon an additional accused, when in the course of trial it appears from the evidence that a person not being an accused had committed the offence for which he/she should be tried alongwith the other accused. [SECTION] [ACT] is an enabling provision empowering the Court to take appropriate steps for proceeding against any person not being an accused for having committed an offence. The Court has to apply its mind whether or not there are any grounds for presuming the commission of offence by the accused. It is the duty of the Court to see as to whether the material brought on record reasonably connects the accused with the offence.
In [PRECEDENT], the Hon'ble Supreme Court held that it is evident that before a court exercises its discretionary jurisdiction in terms of [SECTION] [ACT], it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted.
In [PRECEDENT], while explaining the scope of [SECTION] [ACT], it was observed:
"21. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
22. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of [SECTION] of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under [SECTION] of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz.
(i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."
The power under [SECTION] [ACT] is a discretionary and an extraordinary power and has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The Magistrate or Sessions Judge can not exercise the power only because some persons have been named. The power can be exercised where strong and cogent evidence occurs against a person from the evidence led before the Court. The power can not be exercised in a casual or cavalier manner.
In [PRECEDENT], the conclusions are stated in para 106, which read as:-
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under [SECTION] [ACT] In [SECTION] [ACT] the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused." The words used are not "for which such person could be convicted". There is, therefore, no scope for the Court acting under [SECTION] [ACT] to form any opinion as to the guilt of the accused."
The test that had to be applied is one which is more than prima facie case but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. I have gone through the testimony of [ENTITY]. There does not exist any compelling circumstance to exercise the power. It has been seen that in matrimonial cases the entire family is named merely to seek revenge. The Court has to be circumspect in treating such evidence and has to separate the chaff from the grain. The Court below had carefully examined the evidence and found that there did not exist evidence to proceed against [ENTITY].
I find no infirmity in the order passed by the Court below. The revision petition is dismissed.
September 30, 2014 ([ENTITY]) reena JUDGE