Crl.Rev.No. 556 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 556 of 2009 (O&M) Date of decision: 25.7.2011 Naurang Singh ......Petitioner Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sunil Chadha, Advocate, for the petitioner. Mr.Vishal Munjal, Addl.A.G.Punjab. Mr.Ashok Singla, Advocate for respondent Nos. 2 to 4. Mr.NPS Mann, Advocate for respondent No.5. **** SABINA, J. This petition has been filed by the complainant-petitioner under Section 401 of the Code of Criminal Procedure 1973, (Cr.P.C. for short), challenging the order dated 3.2.2009 passed by the Additional Sessions Judge, whereby the application filed by the State under Section 319 Cr.P.C. for summoning Nirbhai Singh, Jaswant Singh, Jagdish Singh and Narinder Singh as additional accused was dismissed. Learned counsel for the petitioner has submitted that specific role was attributed to Nirbhai Singh, Jaswant Singh, Jagdish Singh @ Bholaand Narinder Singh yet challan had only been Crl.Rev.No. 556 of 2009 (O&M) 2 presented against Jagdeep Singh @ Bittu. The complainant, while appearing in the witness box as PW-1, had deposed qua the role played by Nirbhai Singh, Jaswant Singh, Jagdish Singh and Narinder Singh at the time of the occurrence. The trial Court had erred in dismissing the application filed by the prosecution under Section 319 Cr.P.C. for summoning Nirbhai Singh, Jaswant Singh, Jagdish Singh and Narinder Singh as additional accused. Learned counsel for the private respondents, on the other hand, have averred that the application under Section 319 Cr.P.C. moved by the prosecution had been rightly dismissed by the trial Court as there was no new material before the trial Court to proceed against them. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be partly allowed. FIR in question was lodged by the complainant against Jagdeep Singh @ Bittu, Nirbhai Singh, Jaswant Singh, Jagdish Singh and Narinder Singh under Sections 307/ 341/ 148/ 149 IPC on account of injuries caused to Shaminder Singh. Later on Shaminder Singh died due to the injuries suffered by him and Section 302 IPC was added in the FIR. After investigation of the case, challan was presented against accused Jagdeep Singh @ Bittu, whereas, the remaining persons namely Nirbhai Singh, Jaswant Singh, Jagdish Singh and Narinder Singh were kept in column No.2 of the final report. During trial, complainant-petitioner was examined as PW-1. After his examination, prosecution moved an application under Section 319 Cr.P.C. for summoning the persons mentioned in column No.2 of the final report as accused. However, Vide Crl.Rev.No. 556 of 2009 (O&M) 3 impugned order dated 3.2.2009, the said application was dismissed. 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.” It has been held by the Apex Court in case Suman Vs. Crl.Rev.No. 556 of 2009 (O&M) 4 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 Crl.Rev.No. 556 of 2009 (O&M) 5 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 Crl.Rev.No. 556 of 2009 (O&M) 6 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. 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 Crl.Rev.No. 556 of 2009 (O&M) 7 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, PW-1 Naurang Singh specifically deposed that Narinder Singh and Bhola Singh were armed with dangs, Jaswant Singh was armed with kirpan, Jagdeep Singh and Nirbhai Singh were armed with gandasas at the time of alleged occurrence. Jagdeep Singh instigated the other co-accused to attack Shaminder Singh. Jagdeep Singh gave a gandasa blow on the right side of the head of Shaminder Singh. Nirbhai Singh gave a gandasa blow on the right side of the head of Shaminder Singh. Jaswant Singh gave a kirpan blow on the left side of the head of Shaminder Singh. Narinder Singh and Bhola Singh kept on raising lalkaras. Naurang Singh tried to rescue his brother and thereafter, all the accused fled away from the spot. Since Nirbhai Singh and Jaswant Singh have been attributed specific injuries on the person of the deceased, learned trial Court was required to summon both of them to face the trial as additional accused. It is not the case of the said accused that there was no corresponding injury on the person of Shaminder Singh, which was attributed to them. There was enough material before the trial Court to summon the said persons to face the trial as accused. However, Narinder Singh and Bhola Singh have not been attributed any specific injury on the person of the deceased. The said persons have only been attributed the role that they were raising lalkaras. The possibility that they might have been falsely involved in this case cannot be ruled out. The said persons were found innocent Crl.Rev.No. 556 of 2009 (O&M) 8 during investigation and hence, the application under Section 319 Cr.P.C. qua them had been rightly dismissed by the trial Court. Accordingly, this petition is partly allowed. The impugned order, whereby, the application under Section 319 Cr.P.C. was dismissed qua summoning of Nirbhai Singh and Jaswant Singh as additional accused is set aside. Consequently, the said accused be summoned to face the trial as additional accused by the trial Court. SABINA) JUDGE July 25, 2011 anita