IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Rev. No.268 of 2009 DATE OF DECISION : FEBRUARY 11, 2010 RAJESH & ORS. ....... PETITIONER(S) VERSUS STATE OF HARYANA .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Hemant Bassi, Advocate, for the petitioner(s). Mr. Gaurav Dhir, DAG, Haryana. Mr. Mansur Ali, Advocate, for the complainant. AJAI LAMBA, J. (Oral) Challenge in this revision petition is to order dated 22.12.2008, passed by the trial court, whereby application filed by the prosecution under Section 319, Code of Criminal Procedure, for summoning Rajesh son of Sundar Dass, Meenu wife of Rajesh and Mahesh Raheja son of Bahadur Chand as additional accused, has been allowed. The said persons have been summoned to stand trial as additional accused for commission of offences punishable under Sections 498-A, 406, 304-B, 302 read with Section 34, Indian Penal Code. The discussion on the issue is contained in paras 5 to 8 of the impugned order. The conduct of the said three persons was considered by the Criminal Rev. No.268 of 2009 2 Investigating Agency. No incriminating material was found against them and, therefore, they were shown in column No.2 of the final report (challan) under Section 173, Code of Criminal Procedure. While issuing notice of motion on 3.2.2009, the following has been noticed:- “Crl. Rev. No.268 of 2009 -.- Present: Mr. Hemant Bassi, Advocate, for the petitioners. -.- While forming an opinion to summon the petitioners as additional accused, the trial Court has relied upon the statement of one witness besides taking into consideration the statements of other witnesses recorded under Section 161 Cr.P.C., presuming the statements under Section 161 Cr.P.C. as evidence, against the petitioners. Petitioner No.1 is the brother-in-law of Vikas, husband of deceased-Poonam, petitioner No.2 is the sister of Vikas whereas petitioner No.3 is maternal uncle of Vikas. It appears to be a case of roping in all the family members in a case of alleged dowry death. Notice of motion for March 31, 2009. Meanwhile, the operation of the impugned order will remain stayed till next date of hearing. February 3, 2009 sd/- (M.M.S. BEDI) JUDGE” The application under Section 319, Code of Criminal Procedure, was filed on 14.8.2008. Learned counsel for the petitioners and complainant agree that on the day when the application under Section 319, Code of Criminal Procedure, was taken up for consideration, Criminal Rev. No.268 of 2009 3 statement of Ashok Kumar son of Atma Ram, who was examined as PW- 1 in court on 14.8.2008, was already on the record. It is further the common case of the parties that the statement of Ashok Kumar, recorded in court on oath as prosecution witness, has not been considered while dealing with the application under Section 319, Code of Criminal Procedure. Rather, there is no reference to the statement of Ashok Kumar as prosecution witness. Learned counsel for the complainant has also pointed out that the complainant had filed a complaint against certain persons, including the petitioners, for commission of offence under Section 302, Indian Penal Code. The petitioners and others have been summoned to stand trial vide order dated 13.9.2008 (Annexure P-5). As per the procedure, the two cases are required to be clubbed together by the trial court. Learned counsel for the complainant agrees that the trial court was required to take into account the statement of Ashok Kumar as PW-1 before adjudicating on the application filed under Section 319, Code of Criminal Procedure. Considering the above position, the petition is allowed. Impugned order dated 22.12.2008, passed by the Additional Sessions Judge, Hisar, is hereby set aside. The matter is remanded back to the trial court to enable it to consider the evidence recorded, including the statement of PW-1 Ashok Kumar, and re-adjudicate on the application under Section 319, Code of Criminal Procedure, filed on behalf of the prosecution. In view of the delay already caused, it is directed that the Criminal Rev. No.268 of 2009 4 matter would be addressed and disposed of within a period of 4 weeks of the next date of hearing already fixed by the trial court. February 11, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?