Criminal Misc. No.M- 21919 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M- 21919 of 2008 Date of decision: 18.4. 2009 Harish Kumar and others ......Petitioners Versus State of Haryana and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Bedi, Advocate, for the petitioners. Mr.Sidharth Sarup, AAG, Haryana. Mr.Rajesh Lamba, Advocate, for respondent No.2. **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (“Cr.P.C. for short) for quashing of order dated 11.8.2008 (Annexure P-8) passed by Additional Sessions Judge, Faridabad, whereby revision petition filed by respondent No.2 has been allowed for framing of additional charge and all consequential proceedings arising therefrom. Criminal Misc. No.M- 21919 of 2008 2 Respondent No.2 filed a complaint under Section 498-A and 406 of the Indian Penal Code ('IPC” for short) before the Area Magistrate under Section 156 (3) Cr.P.C. Chief Judicial Magistrate, Faridabad ordered that FIR be registered against the petitioners. In pursuance thereto FIR No.399 dated 29.10.1998 (Annexure P-1) was registered against the petitioners under Sections 498-A/406 IPC. Vide order dated 26.7.2005 (Annexure P-2) prosecution evidence was ordered to be closed and case was fixed for recording of the statements of the petitioners under Section 313 Cr.P.C.. Thereafter respondent No.2 moved an application under Section 311 Cr.P.C. for examination of three witnesses. The said application was dismissed by the trial Court vide order dated 21.8.2007 (Anneuxre P-4). Revision petition filed by respondent No.2 against the said order was partly allowed by Additional Sessions Judge, Faridabad vide order dated 3.5.2008 (Annexure P-5) and respondent No.2 was granted one opportunity to furnish on record certified copies of order/judgment/decree. Thereafter, respondent No.2 moved another application for framing of additional charge under Section 307 IPC against the petitioners in view of judgment dated 14.12.1999 passed by Additional District Judge (I), Faridabad (Mark 'X'). The said application was dismissed by the trial Court vide order dated 9.7.2008 (Annexure P-7). In a revision filed by respondent No.2, the order of the trial Court (Annexure P-7) was set aside and the trial Court was directed to proceed further with the matter in accordance Criminal Misc. No.M- 21919 of 2008 3 with law. It was also held that there was sufficient evidence on record to show that a prima facie case against the petitioners for commission of offence punishable under Section 307 read with Section 34 IPC was made out. Hence, the present petition. Learned counsel for the petitioners has submitted that the revision petition filed by respondent No.2 seeking amendment of charge was not maintainable. He has further submitted that respondent No.2 had filed the complaint under Sections 498-A/406 IPC although the allegation that on 10.9.1998 an effort was made by the petitioners to set her on fire was also mentioned therein. The witness, who had allegedly witnessed the said occurrence, was not cited as a witness and consequently application moved by respondent No.2 under Section 311 Cr.P.C. was dismissed seeking summoning of Bimla Devi. The observations made by the Court while dismissing divorce petition filed by petitioner No.1 were not relevant for framing of charge under Section 307 IPC. In support of his arguments, learned counsel for the petitioners has placed reliance on Thakur Ram and others vs. The State of Bihar AIR 1966 Supreme Court 911, M.S. Sheriff and another vs. State of Madras and others AIR 1954 Supreme Court 397 (Vol.41 C.N.95) and Nazim Khan vs. State (Delhi) 2001 (2) RCR (Criminal) 517. Learned counsel for respondent No.2, on the other hand, has submitted that a perusal of the judgment of the Additional Criminal Misc. No.M- 21919 of 2008 4 Sessions Judge, Faridabad revealed that prima facie a case under Section 307 IPC was made out against the petitioners and hence, order of the trial Court rejecting application for amendment of charge had been rightly set aside by the Additional Sessions Judge, Faridabad. In order to decide the controversy in this case, the facts of this case are very material. Respondent No.2 was married to petitioner No.1 on 13.12.1990. At the instance of respondent No.2, FIR was registered against the petitioners on 29.10.1998 (Annexure P-1) under Sections 498-A/406 IPC. A perusal of the same reveals that it was the case of respondent No.2 that the petitioners had committed an offence under Sections 406, 498-A, 120-B/34 IPC. It was nowhere alleged by respondent No.2 that the petitioners were guilty of commission of offence under Section 307 IPC. Charge was framed against the petitioners on 25.3.2002. The judgment on which reliance has been placed by respondent No.2 for framing of charge under Section 307 IPC was passed by Additional District Judge-I, Faridabad on 14.12.1999, while dismissing the divorce petition filed by petitioner No.1 on 19.12.1998. The said judgment was not placed on record by respondent No.2 before framing of charge on 25.3.2002. Thereafter, some prosecution witnesses were examined and the evidence of the prosecution was closed by order vide order dated 26.7.2005 (Annexure P-2) by the trial Court as the prosecution had failed to conclude its evidence despite several opportunities. Criminal Misc. No.M- 21919 of 2008 5 The case was adjourned for recording of the statements of the petitioners under Section 313 Cr.P.C. and the same were recorded by the trial Court on 28.11.2005. The petitioners examined witnesses in their defence and the case was fixed for further defence evidence and arguments. Statement of the complainant was recorded in the year 2003, whereas, the application for addition of charge under Section 307 IPC was moved in the year 2008. A perusal of the judgment passed by Additional District Judge-I, Faridabad, on which reliance has been placed by respondent No.2 for framing of charge under Section 307 IPC, reveals that in para 25, it has been observed that the statement of Kiran Bala-RW-1 to the effect that on 10.9.1998, she was given beatings and was attempted to be set on fire inspired confidence as the same was supported by Smt.Bimla, a lady from the neighbourhood. This is an observation by Additional District Judge- I, Faridabad while dismissing the divorce petition filed by petitioner No.1. However, there is no medical report or opinion of the doctor in the present criminal case to prima facie corroborate the plea of respondent No.2 regarding commission of offence under Section 307 IPC. The witness, who had allegedly witnessed the occurrence dated 10.9.1998, was not cited as a witness in the present criminal proceedings. The application under Section 311 Cr.P.C. moved by respondent No.2 seeking summoning of Bimla Devi as a witness to corroborate the commission of offence under Section 307 IPC was Criminal Misc. No.M- 21919 of 2008 6 declined. In the absence of any medical report or opinion of a doctor or any other corroboration to the effect that respondent No.2 was given beatings and was attempted to be set on fire by the petitioners on 10.9.1998, it cannot be said that there is a prima facie evidence on record to frame charge under Section 307 IPC merely on the basis of observations made by Additional District Judge (I), Faridabad in divorce proceedings. Learned Additional Sessions Judge, Faridabad has been wrongly swayed by the observations made by Additional District Judge-I, Faridabad in para 25 of his judgment (March 'X'). In the present criminal proceedings, prosecution is expected to prima facie establish that offence under Section 307 IPC was made out. However, from the factual matrix of this case observed above, it cannot be said that at this stage, it would be just and expedient to frame a charge under Section 307 IPC. Respondent No.2 was apparently aware of the fact that no offence under Section 307 IPC was made out at the time of moving complaint to the Area Magistrate under Section 156 (3) Cr.P.C. and due to this reason, no prayer was made for lodging of the FIR under Section 307 IPC. Now when the case is listed for defence evidence and arguments, application has been moved for framing of charge under Section 307 IPC with a view to harass the petitioners. In these circumstances, the impugned order is liable to be set aside. Accordingly, this petition is allowed. The impugned order Criminal Misc. No.M- 21919 of 2008 7 dated 11.8.2008 (Annexure P-8) passed by Additional Sessions Judge, Faridabad and all consequential proceedings arising therefrom are set aside. (SABINA) JUDGE April 18, 2009 anita