Criminal Misc. No. 9647-M of 2005 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 9647-M of 2005 Date of decision February 15, 2008 Raj and others .....Petitioners Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL *** Present: Mr. Harsh Kinra, Advocate for the petitioner Mr. Navneet Singh, Assistant Advocate General, Haryana Mr. Rakesh Nehra, Advocate for respondent no.2 **** RAJESH BINDAL J. 1. The challenge in the present petition is to the order dated July 26, 2004 passed by Judicial Magistrate Ist Class, Rohtak whereby in an application filed under Section 319 of the Code of Criminal Procedure ( for short ‘the Code”) by the prosecution, petitioners were summoned for the commission of offence punishable under Section 498-A IPC and further the SHO, Police Station concerned was directed to file supplementary challan. Further challenge is to the order dated January 13, 2005 passed by learned Additional Sessions Judge-I, Rohtak whereby order passed by Judicial Magistrate Ist Class, Rohtak was upheld. 2. The present proceedings arise out of matrimonial discord between husband and wife. Briefly the facts stated in the petition are that the marriage between respondent no.2 and Surjit Singh was solemnized at Rohtak on June 29, 2001. The couple stayed together for less than three months as respondent no.2 parted with company on September 25, 2001. Criminal Misc. No. 9647-M of 2005 -2- *** On a complaint filed by respondent no.2-wife on April 16, 2002, formal FIR was registered in which names of various persons were mentioned. After registration of FIR, husband of respondent no.2 was arrested. After enquiry, petitioners who though were named in the FIR lodged by respondent no.2 were found to be innocent and challan under section 173 of the Code was filed only against husband Surjit Singh on May 23, 2002 for offences under Sections 498-A/ 406 IPC. It is relevant to add that as mentioned in the order passed by the learned Judicial Magistrate Ist Class, Rohtak exparte decree of divorce was granted on November 23, 2002 in favour of respondent no.2. 3. During the trial, examination-in-chief of respondent no.2/complainant was recorded on February 4, 2003. Immediately thereafter on the same date, an application under Section 319 of the Code was filed for summoning the petitioners. Learned Magistrate relying upon the statement of respondent no.2 where she had levelled allegations against the petitioners that they used to demand dowry and torture her for bringing more dowry opined that there was prima facie evidence against the petitioners. Accordingly, they were directed to be summoned for commission of offence punishable under Section 498-A IPC vide order dated July 26, 2004. In addition to this SHO, Police Station concerned was directed to file supplementary challan. Petitioners filed revision before learned Additional Sessions Judge taking various pleas, however, finding no merit therein, the revision petition was dismissed. 4. In the above factual matrix, learned counsel for the petitioners submitted that petitioners, who have been summoned in application filed under Section 319 of the Code have no role to play in the entire episode for the simple reason that they are distant relative living separately and old parents. He has narrated relationship and status of the petitioners viz a viz the husband which is as under:- Criminal Misc. No. 9647-M of 2005 -3- *** Petitioner No.1 Raj Rani Wife of the brother of the husband; aged 39 years; has three children; living separately; has separate ration card. Petritioner No.2 Smt. Shakuntla Widow sister of the husband; aged 52 years; having four girls; two married and two unmarried; living separately; has separate ration card. Petitioner No.3 Smt. Varsha. Sister of the husband; aged 45 years; trained staff nurse; married; living in England. Petitioner No. 4 Naresh Brother of the husband; aged 45 years; married about 20 years ago; having three children; living separately; has separate ration card. Petitioner No. 5 Kuldeep Brother of the husband; married; aged 42 years; having two daughters. Petitioner No.6 Smt. Sheela Wanti Mother of the husband; aged 80 years infirm and old lady. Petitioner No. 7 Vaisakhi Ram Father of the husband; infirm; aged 86 years. 5. He further submitted that while passing the impugned orders both the Courts below have given a total go by to the settled principles of law that summoning of an accused is a serious matter and the power under Section 319 of the Code is to be used sparingly. He further submitted that unless there was sufficient material on record, from which it could reasonably be concluded that persons sought to be summoned in application filed under Section 319 of the Code are likely to be convicted of the offence alleged, they should not be summoned. Still further the submission is that mere statement of the complainant, which was already there before the police was not sufficient to summon the other persons against whom challan was not presented after due investigation by the police unless there was any other material also on record as merely the reiteration of the statement of the complainant in the Court would not be sufficient. Still further submission is that even the direction of the learned Magistrate to the Police to file a Criminal Misc. No. 9647-M of 2005 -4- *** supplementary challan is totally beyond jurisdiction as far as scope of Section 319 of the Code is concerned. Petitioners have been summoned to face trial merely on general allegations made by the complainant which is not permissible. All the petitioners have been summoned by the learned Court below merely on making general observations on the statement of the complainant without recording any reason whatsoever as to what role was attributed to each of the petitioner. The order being totally non speaking is otherwise also liable to be set aside. Reliance has been placed upon Smt. Rani Vs. State of Haryana 2006 (1) R.C.R. (Criminal) 985, Surinder Kumar Changli Vs. State of Punjab 2006 (2) R.C.R. (Criminal) 359, and Guriya @ Tabassum Tauquir and others Vs. State of Bihar and another 2007 (4) Recent Criminal Cases 518. 6. On the other hand, controverting the contentions raised by learned counsel for the petitioners, learned counsel for respondents submitted that scope and ambit of the powers vested with the Court under Section 319 of the Code is quite wide as the language suggest that the same can be exercised at any stage of the proceedings. To avoid unnecessarily delay, it is appropriate that such a power is exercised at initial stage of the proceedings. Once complainant had reiterated her statement before the Court, there was every reason for the Court to have summoned the petitioners, who were left out by the police during investigation though specific allegations were there against them. The only requirement for summoning an accused under Section 319 of the Code is that it should appear to the Court that offence had been committed by the persons sought to be summoned. The objection to the maintainability of the present revision was also raised. Still further it is submitted that the petitioners can very well raise all the pleas at the time of framing of charge and in case sufficient material was not found at that stage, they can very well be discharged. Further due process of law initiated against them should not be scuttled at this initial stage. 7. In the present case, immediately after recording of the examination-in-chief of the complainant on February 4, 2003, an application was filed under Section 319 of the Code on the same date seeking summoning of seven accused as mentioned in earlier part of the judgment Criminal Misc. No. 9647-M of 2005 -5- *** having different relations with husband. All what the Judicial Magistrate mentioned while recording the satisfaction is reiteration of the statement made by the complainant while recording the FIR, the same reads as under:- “A perusal of the case file shows that in the complaint filed by Sushma, complainant, she had specifically mentioned the names of these persons and had levelled allegations against them that they used to demand dowry and tortured her for bringing more dowry. However, the police had not challaned these persons and had exonerated them in investigation. However, when the complainant appeared in the witness box as PW1 she has again reiterated the version mentioned in the complaint and stated the names of these persons and levelled allegations of demand of dowry and harassment, against them. Thus, there is prima facie evidence against these persons that they have committed offence punishable under Section 498-A IPC. Hence, these persons are liable to be summoned for the commission of offence punishable under Section 498-A IPC. Let, they be summoned accordingly for 3.11.04 on PF/RC etc. SHO PS concerned be directed to file the supplementary challan on or before the next date of hearing.” 8. A perusal of the above shows that besides summoning the petitioners even a direction was given to the S.H.O, Police Station concerned to file supplementary challan which according to the petitioners was beyond the jurisdiction of the Magistrate under Section 319 of the Code. 9. This Court in Criminal Misc. No. 11407-M of 2007 ( Ashok Kumar Vs. State of Haryana ) decided by a separate detailed order passed today, while considering number of judgments of Hon'ble the Supreme Court and this Court in Rukhsana Khatoon (Smt.) Vs. Sakhawat Hussain and others (2002) 10 Supreme Court Cases 661, Krishnappa v. State of Karnataka, (2004) 7 SCC 792, Kailash Dwivedi Vs. State of Criminal Misc. No. 9647-M of 2005 -6- *** M.P. and another (2005) 11 Supreme Court Cases 182, Palanisamy Gounder and another Vs. State reprsented by Inspector of Police (2005) 12 Supreme Court Cases 327, Kavuluri Vivekananda Reddy and another Vs. State of A.P. And another (2005) 12 Supreme Court Cases 432, Lok Ram Vs. Nihal Singh 2006 (2) RCR (Criminal) 707, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 Supreme Court Cases 296, Mohd. Shafi Vs. Mohd. Rafiq and another 2007 (2) RCR (Criminal) 762, Rajendra Singh Vs. State of U.P. and Anr 2007 (3) R.C.R. (Criminal) 1021, Municipal Corpn. of Delhi v. Ram Kishan Rohtagi, 1983 (1) RCR (Criminal) 73, Joginder Singh V. State of Punjab (1979) 1 SCC 345, Kishan Singh V. State of Bihar 1993 (1) RCR (Criminal) 647, Guriya @ Tabassum Tauquir and others Vs. State of Bihar and another 2007 (4) Recent Criminal Cases 518, Y. Saraba Reddy Vs. Puthur Rami Reddy and another (2007) 4 Supreme Court cases 773, Smt. Rani Vs. State of Haryana 2006 (1) R.C.R. (Criminal) 985, Surinder Kumar Changli Vs. State of Punjab 2006 (2) R.C.R. (Criminal) 359, Surjit Kaur and others Vs. State of Punjab and another 2006 (1) RCR (Criminal) 565, Rajbir Singh Vs. State of Haryana and others 2006 (3) RCR (Criminal) 195, Manoj Kumar Vs. Prabhu Ram 2003 (4) RCR (Criminal) 887, Isham Singh and others Vs. State of Haryana 2004 (2) RCR (Criminal) 279, Bharat Bhushan alias Sonu Vs. State of Haryana and another 2005 (1) RCR (Criminal) 976, Surinder Kumar Vs. State of Punjab Changli 2006 (2) RCR (Criminal) 359, Smt. Rajjo and another Vs. State of Haryana and another 2006 (3) RCR (Criminal) 635, Om Parkash and others Vs. State of Haryana 2007 (1) RCR (Criminal) 632, Ram Karan alias Roda and another Vs. State of Haryana 2007 (1) RCR (Criminal) 977, Ganesha Vs. State of Haryana and another 2007 (2) RCR (Criminal) 633 and Hukam Chand and anotehr Vs. State of Haryana 2007 (3) RCR 141 has summed up the broad principles, as to under what circumstances power under Section 319 of the Code should be exercised, which are in the following terms:- Criminal Misc. No. 9647-M of 2005 -7- *** “i) Power to summon an accused is discretionary and extra-ordinary power, which should be exercised sparingly and only if compelling reasons exist at any stage of case. ii) The order passed under Section 319 of the Code of Criminal Procedure summoning an additional accused should not be a mechanical exercise. Court should record reasonable satisfaction and reasons in support of the order. iii) Power cannot be exercised to conduct a fishing enquiry. iv) There should be reasonable prospects of the case against the newly added accused ending in their conviction. v) Step to summon an accused can be taken only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge-sheet or the case-diary as such material does not constitute evidence. vi) Power can be exercised suo-moto or on an application by some one including accused already before the Court. vii) An accused is not entitled to be heard before the Court exercises power under Section 319 of the Code of Criminal Procedure. viii) Satisfaction of the Court is paramount before summoning an accused, which can be arrived at inter- alia upon completion of cross-examination of the witness. ix) Mere statement of the complainant without there being any other evidence on record may not be sufficient to summon the accused. Each case on this aspect needs cautious examination on facts before passing order of summoning of additional accused. Criminal Misc. No. 9647-M of 2005 -8- *** x) Each case has to be considered on its own facts as there may be different stages of the case where the Court can reach to a conclusion that a prima facie case is made out against the accused sought to be summoned.” 10. In the present case all what is on record in the form of evidence before the Court below was the statement of complainant wherein the allegations against the petitioners as were made in the FIR were reiterated. A perusal of the impugned order shows that the Court has merely stated that as the complainant has reiterated her statement made in the FIR prima facie offence is made out against the petitioners. Accordingly, they be summoned. This in my opinion especially in the facts of the present case where the parties stayed together merely for less than three months, may not be sufficient material to summon the distant relatives living separately. The Courts have to be cautious in summoning additional accused especially in the matrimonial cases where sometime the tendency is to involve all the family members who may or may not be directly involved or connected with the offence, however, in the process no guilty should be spared. If there is sufficient material, there is no bar for summoning even distant relations, if prima facie offence is made out against them. 11. Accordingly, for the reasons stated above, the impugned order dated July 26, 2004 passed by Judicial Magistrate Ist Class, Rohtak and order dated January 13, 2005 passed by learned Additional Sessions Judge- I, Rohtak are set aside. However, the same shall not debar the prosecution from filing application under Section 319 of the Code at any subsequent stage of the proceedings in case any further material comes on record justifying the summoning of the additional accused. 12. The petition is disposed of in the above terms. February 15 , 2008 (Rajesh Bindal) Pka Judge