IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. R. No.1587 of 2010 Date of Decision:12.8.2010 Mohan .... Petitioner Versus State of Haryana and others .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Sunil Saharan, Advocate for the petitioner. Mr. Vikas Malik, A.A.G. Haryana. **** 1.Whether Reporters of Local Newspapers 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? NIRMALJIT KAUR, J. The facts in short are that Pooja died within two years of her marriage. Accordingly, an FIR No.1019 dated 24.12.2008 under Sections 498-A, 328,304-B/34 IPC was registered against Kuldeep-husband, mother- in-law Bhagi Devi, brother-in-law Sandeep and Sister-in-law Neelam. The matter was investigated. After investigation, the challan was filed against the husband-Kuldeep and mother-in-law Bhati Devi only. The other accused i.e. respondents No.2 and 3 were placed in column No.2 as they were found innocent. Thereafter, the petitioner was examined as PW-6 before the trial Court. The petitioner reiterated the allegations levelled by him in the FIR. On the basis of the said evidence, an application under Section 319 Cr.P.C. was moved to summon respondents No.2 and 3. The said application was dismissed vide order dated 16.3.2010. Hence, the present revision petition. While praying for setting aside the impugned order dated 16.3.2010 as well as to summon respondents No.2 and 3 to face trial as Crl. R. No.1587 of 2010 -2- additional accused in the present case, learned counsel for the petitioner submitted that, there were specific allegation in the FIR. The deceased had died within two years of her marriage on account of forcibly administering her poison. There were injuries found on her face as per the PMR. It was further stated that the petitioner while appearing as PW-6 had repeated specific allegations against all the accused. Secondly, once the person has been named specifically by the complainant or the prosecution witnesses while appearing before the trial Court about the role of the person, who is to summon as an additional accused, the trial Court is only to see whether the prima facie case to summon those persons as additional accused is made out or not and the trial Court is not required to see whether there is likelihood of conviction of the said persons or not. The argument made by the learned counsel for the petitioner is contrary to the proposition of law laid down by the Hon'ble Apex Court. The allegations in the FIR against respondents No.2 and 3 i.e. brother-in-law and sister-in-law are that they along with other accused used to give beatings and taunt the deceased Pooja that her parents had not given motorcycle. It is further stated by the petitioner-complainant in the FIR that on enquiry the deceased had earlier told him that Kuldeep, Sandeep, Neelam and her mother-in-law had given her injuries and all the four made her to consume spray (poison). Respondents No.2 and 3 were found innocent by the investigating agency. Thereafter, they have been summoned on the basis of the statement made by the complainant-Mohan Singh. The above allegations are repeated by him in his statement. In fact, in the cross examination, he admitted as under: Crl. R. No.1587 of 2010 -3- “Neelam is elder to Kuldeep. She is married in village Bhuthan and having three children. I have not visited village Buthan today. I do not know whether Neelam has ration card pertaining to village Buthan, District Fatehabad. Sandeep is unmarried. At the time of marriage of Pooja, he was studying in 10th class. Sandeep is younger to two three years from Kuldeep.” It is apparent from the FIR that the allegations against respondents No.2 and 3 are vague and not specific. They have been enroped only on account of being close family members. Respondent No.2, who is brother-in-law was admittedly studying only in the 10th class at the time of marriage. Respondent No.3- who is married sister-in-law and having three children, is residing happily in her matrimonial home. In Michael Machando and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, considering the basic requirements of Section 319 of the Code, Court said: “The basic requirement for invoking the above Section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertain some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.” In Krishnappa v. State of Karnataka reported as 2004(4) RCR (Criminal) 678, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizable against Crl. R. No.1587 of 2010 -4- the person other than the accused. The Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009(3) RCR (Criminal) 388, in para 17, observed as under: “17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of these cases where its jurisdiction should be exercised sparingly. We may notice that in Y.Saraba Reddy v. Puthur Rami Reddy and Anr. (JT 2007(6) SC 460), this Court opined: “... Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word “evidence” in Section 319 contemplates that evidence of witnesses given in Court...” An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. 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.” Crl. R. No.1587 of 2010 -5- Hon'ble the Supreme Court in Sarabjit Singh's case (supra) also held that 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 extra ordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied. Applying the test as aforesaid to the facts of the present case, the present revision petition deserves to be dismissed. In the present case, no date or specific allegation is alleged. All the allegations are vague and against all the members in one breath. Respondent No.2-brother-in-law was studying in the 10th class at the time of marriage while respondent No.3-sister-in-law is married and residing happily in her matrimonial home. In fact there is no fresh evidence except that allegations made in the FIR are repeated. Moreover, in the cross examination, the status of the marriage of respondent No.3- sister-in-law is admitted by the petitioner. It is the rising tendency to involve all the relatives in the matrimonial disputes. No specific allegation has been levelled. No time and date has been given to substantiate the same. Thus, the extra ordinary power conferred on this Court under Section 319 Cr.P.C. has to be exercised with restrain. It is not an extra ordinary case. The facts and evidence in the present case do not constitute any compelling reason so as to enable this Court to come to the conclusion that it would warrant their prosecution with a good chance of conviction. No merit. Dismissed. 12.8.2010 ( NIRMALJIT KAUR ) rajeev JUDGE