Crl. Misc. No. M-22021 of 2010 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-22021 of 2010 (O&M) Date of Decision: 25.8.2011. Bhupinder Singh and others .......Petitioners Vs. State of Punjab and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Ashok Khunger, Advocate for the petitioners. Mr. G.S.Brar, Asstt. A.G., Punjab for respondent No.1. Mr. D.N.Ganeriwala, Advocate for respondent No.2. ..... SABINA, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) for quashing of the summoning order dated 03.6.2010 (Annexure P-7) and all consequential proceedings arising therefrom. Learned counsel for the petitioners has submitted that the trial court had erred in allowing the application moved by the prosecution under Section 319 Cr.P.C. and, ordering the summoning of the petitioners as additional accused. The complainant had made material improvements in his statement while appearing in the witness box. In the FIR no overt act was attributed to the petitioners. Crl. Misc. No. M-22021 of 2010 (O&M) -2 - Learned state counsel and counsel for respondent No.2, on the other hand, have submitted that all the accused, in connivance with each other, had inflicted injuries on the person of the complainant. All the accused were duly named in the FIR. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be partly allowed. 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 Crl. Misc. No. M-22021 of 2010 (O&M) -3 - 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.” Thus, as per the above provision, the trial court may summon any person to face the trial as an accused if there is sufficient material available against the said person during trial to proceed against him. 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) Cr.P.C. 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) Cr.P.C. 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.” Crl. Misc. No. M-22021 of 2010 (O&M) -4 - “The process issued against the appellant under Section 319 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C., 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 Cr.P.C. and by the Magistrate under Section 164 Cr.P.C. In her Crl. Misc. No. M-22021 of 2010 (O&M) -5 - 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 Cr.P.C., 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 Crl. Misc. No. M-22021 of 2010 (O&M) -6 - under Section 482 Cr.P.C. 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 Cr.P.C., 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.” A perusal of the FIR in question (Annexure P-1) reveals that the complainant had stated that on 10.11.2008 at about 5.30 P.M. he was going on foot to his house. When he reached near the pond of Phirni (Circular Road) Tej Singh armed with knife, Bhupinder Singh armed with dang, Boor Singh @ Balla armed with dang, Gurjant Singh armed with kasoli, Jagsir Singh armed with kirpan, Baz Singh armed with dang were standing there. On a lalkara raised by Boor Singh, the complainant was surrounded by all the accused and Tej Singh gave a knife blow below his chest on the right side. On hearing alarm, raised by the complainant, his brother Ranjit Singh and Napinder Singh reached the spot. All the accused fled away from the spot with their respective weapons. After completion of investigation and necessary formalities, challan was presented against Tej Singh. During the pendency of the trial, prosecution moved an application under Section 319 Cr.P.C. for summoning the Crl. Misc. No. M-22021 of 2010 (O&M) -7 - petitioners to face the trial as additional accused. Vide the impugned order, the said application was allowed. PW2- Ranjit Singh, in his statement, deposed that Boor Singh had raised the lalkara that Ranjodh Singh be not let alive. Then he was surrounded by all the accused. Thereafter, all the accused surrounded injured Ranjodh Singh. Bhupinder Singh and Ajmer Singh caught hold of Ranjodh Singh from his arms. Baj Singh gave a dang blow on the back side of the shoulder of Ranjodh Singh. Gurjant Singh caught hold of Ranjodh Singh from his hair. Tej Singh gave a knife blow below the chest of Ranjodh Singh. Thus, at this stage, there was no material before the trial court to summon the petitioners Nishan Singh and Jagsir Singh. However, there was sufficient material before the trial court to summon the petitioners Bhupinder Singh, Boor Singh, Gurjant Singh, Ajmer Singh and Balraj Singh/Baz Singh. The names of the said persons were duly mentioned in the FIR and it was also mentioned by the complainant in the FIR that all the accused had surrounded him. The eye witness PW-2 Ranjit Singh has deposed qua the role played by the petitioners Bhupinder Singh, Boor Singh, Ajmer Singh, Baz Singh and Gurjant Singh. Hence, there is no force in the arguments raised by learned counsel for the petitioners that the witness has made improvements while appearing in the witness box. The trial court had, thus, rightly exercised its jurisdiction vested under Section 319 Cr.P.C. while summoning the said petitioners. Accordingly, this petition is partly allowed. The impugned summoning order dated 03.6.2010 (Annexure P-7) qua petitioner No.5 Nishan Singh and petitioner No.6 Jagsir Singh is set aside. The impugned order qua petitioners No.1 Bhupinder Singh, petitioner No.2 Boor Singh @ Balla, petitioner No.3 Gurjant Singh, Crl. Misc. No. M-22021 of 2010 (O&M) -8 - petitioner No.4 Ajmer Singh and petitioner No.7 Balraj Singh/Baz Singh is upheld. (SABINA) JUDGE August 25, 2011 Gurpreet