Crl.Rev.No. 1433 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 1433 of 2009 (O&M) Date of decision: 26.7.2011 Barkat Ali ......Petitioner Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Deepender Singh, Advocate, for the petitioner. Mr.Amandeep Singh, DAG, Haryana. Mr.Sunil Panwar, Advocate, for respondent No.3. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 challenging the order dated 10.4.2009 passed by the Additional Sessions Judge, Gurgaon, whereby the application filed by the prosecution for summoning Crl.Rev.No. 1433 of 2009 (O&M) 2 respondents No.2 to 19, under Section 319 Cr.P.C, was dismissed. FIR in the present case was registered on the basis of the statement of the petitioner. It was alleged therein that on 9.4.2005, Panchayat elections took place in the village. Mother of the petitioner was a candidate for the post of sarpanch. At about 9.30 a.m. when the voting was going on, Bashir, who was also a candidate for the post of sarpanch with Usmaan, Ibrahim, Mubin, Hasan, Harun, Subhan Khan, Nawab, Auyb, Sahun, Deen Mohd., Mamru, Israile, Safi, Khairudin @ Khairu, Habib, Anwar, Jakir, Fajru, Nissar, Nawab, Hamid, Lehar Khan and Nasir came at the spot armed with lathis, dandas, stones, iron rods and chatias. The said persons told the petitioner, Sahabudin, Jaituni, Mustakin, Zubed, Wali Mohd as to why they had not voted for the petitioner and they would teach them a lesson. Then all the persons attacked the petitioner and his men with dandas, lathis, chatias, iron rods and inflicted injuries on their person. Wali Mohd. in order to save himself, went in the nearby shop. Bashir, Usmaan, Ibrahim, Mubin, Hasan and Harun went inside the shop and dragged out Walia Mohd. Bashir, Usman, Ibrahim and Mubin caught hold of Wali Mohd. Ibrahim gave a blow with iron rod on the head of Wali Mohd. Hasan and Harun gave slaps, fist and kick blows on the person of Wali Mohd. Deenu gave a Chatia blow on the palm of right hand of the petitioner. Mamru gave a lathi blow on the right shoulder of the petitioner and Israile gave a lathi blow on the head of the petitioner. When Jaituni, Mustakin, Sahabudin and Zubed came for intervention, they were also inflicted injuries by Subhan Khan, Nawab, Ayub, Sahun, Habib, anwar, Jakir, Fajru, Nissar, Hamid, Lehar Khan. The Crl.Rev.No. 1433 of 2009 (O&M) 3 petitioner was given slaps and fist blows by Safi and Kehru. Satbir, Ali Khan and Nizar Mohd. came to the spot. On seeing them, all the accused fled away from the spot with their respective weapons. Challan was presented against Deen Mohd. Khairuddin, Lehar Khan, Israile, and Jakir. During trial, prosecution moved an application under Section 319 Cr.P.C. for summoning respondents No.2 to 19. Vide impugned order dated 10.4.2009, the said application was dismissed. So far as the petition against respondents No.2, 4 to 19 is concerned, the same was dismissed by this Court vide order dated 27.5.2009 and notice of motion was issued only to respondent 3 Ibrahim. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed qua summoning of respondent No.3. It has been held by the Apex Court in case Suman Vs. 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 Crl.Rev.No. 1433 of 2009 (O&M) 4 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 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 Crl.Rev.No. 1433 of 2009 (O&M) 5 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 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 Crl.Rev.No. 1433 of 2009 (O&M) 6 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 record and held that prima facie case was made out for initiating proceedings against the appellant herein under Section 498-A IPC.” Section 319 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 Crl.Rev.No. 1433 of 2009 (O&M) 7 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.” There is a specific allegation in the FIR that Ibrahim had given an iron rod blow on the head of Wali Mohd. The said fact was also stated by the petitioner while appearing in the witness box as PW-1. It has been observed by the learned Sessions Judge in the impugned order that the doctor had also opined that there was a head injury on the person of Wali Mohd. and he remained admitted in the hospital till 5.7.2005. Wali Mohd. had become permanently disabled and was suffering from memory loss. Since there was enough material before the trial Court to proceed against respondent No.3 Ibrahim, the application qua respondent No.3 was liable to be Crl.Rev.No. 1433 of 2009 (O&M) 8 allowed. The trial Court had, thus, erred in dismissing the application qua summoning of respondent No.3. Accordingly, this petition is partly allowed and the impugned order, whereby the application under Section 319 Cr.P.C. was dismissed in toto is modified to the extent that the application stands allowed qua respondent No.3 Ibrahim and let the said respondent be summoned to face the trial by the trial Court. SABINA) JUDGE July 26, 2011 anita