Crl. Misc. No. M- 22514 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 22514 of 2009 (O&M) Date of Decision: May 14, 2010 Ram Roop & others ........Petitioners Versus State of Haryana ........Respondent CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. Anand Bhardwaj, Advocate for the petitioners. Mr. Satyavir Singh Yadav, DAG, Haryana. Mr. Ashit Malik, Advocate for the complainant. SABINA, J. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure (in short 'Cr.P.C.') for quashing the summoning order dated 2.4.2009 (Annexure P-6), whereby the petitioners have been summoned under Section 319 Cr.P.C. to face trial alongwith other co- accused in case FIR No. 36 dated 23.4.2006 under Sections 364-A, 506,120B and 34 of Indian Penal Code (in short 'IPC'), Police Station Hassanpur, District- Faridabad (Now District Palwal). The complaint made by the complainant to the Station House Officer, Police Station Hassanpur (Annexure P-3) reads as under :- “ Respectfully submitted that I, Ram Chand s/o Ram Surat caste Harijan (Chamar) am a resident of village Bela and doing the agriculture work. My grandson Crl. Misc. No. M- 22514 of 2009 (O&M) 2 Deepak s/o Mahender aged 12 years was studying in Class VI in Govt. School Meerpur Korali. Today on 22.4.2006 at 8:00 O'clock my grandson Deepak and grand-daughter Hem Lata who is also a student of 6th class, both were going to school at Meerepur Korali on foot. On the way at the on the bridge of Agra Canal three persons met them and they handed over the bag of my grandson Deepak to my grand daughter and took my grandson towards Korali side. My grand daughter Hem Lata told about all this after reaching home. We immediately started searching for my grandson who is still untraced despite search. I have full suspicion that Babu Lal r/o resident of Village Siroli (U.P.) and Rajbir, Daya Chand, Kishan, Ram Rup all sons of Khillu caste Harijan (Chamar) and Shiv Dayal, Bhoj Pal and Bhim all sons of Daya Chand caste Harijan (Chamar) am a resident of village Bela aged 20 years; all residents of Village Bela have kidnapped my grandson. Hence it is respectfully submitted that after taking legal action against the said persons and after my grandson be recovered and justice be done.” Learned counsel for the petitioners has submitted that the petitioners had been found innocent during the course of inquiry/investigation and there was no fresh material before the trial Court to summon the petitioners as additional accused. Learned State Counsel, on the other hand, has opposed the Crl. Misc. No. M- 22514 of 2009 (O&M) 3 petition and has submitted that the petitioners had also participated in the commission of the offence. It has been held by the Apex Court in case of 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.” “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 Crl. Misc. No. M- 22514 of 2009 (O&M) 4 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 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.” Crl. Misc. No. M- 22514 of 2009 (O&M) 5 “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 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 Crl. Misc. No. M- 22514 of 2009 (O&M) 6 was remitted for fresh disposal of the revision petition. In the post rem and 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 498A IPC.” In the present case the grand son of the complainant aged about 12 years was kidnapped. The complainant lodged the FIR alleging therein that his grandson had been kidnapped by the petitioners and their co- accused. However, during investigation the petitioners were found innocent. A perusal of the final report (Annexure P-3) reveals that no justification or reasons have been given as to why the petitioners were found innocent by the Investigating Agency. The petitioners were placed in column No.2 at the time of presentation of challan. The complainant while appearing in the witness box has categorically deposed that his grand son had been kidnapped by the petitioners and their co-accused. In these circumstances, the learned trial Court rightly came to the conclusion that there was sufficient evidence on record to lead to the inference that the petitioners were also involved in commission of offence of kidnapping of minor Deepak. No ground for interference is made out. Dismissed. (SABINA) May 14, 2010 JUDGE Anand