CRM-M No.20160 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh CRM-M No.20160 of 2010 (O&M) Date of decision: 10.8.2010 Pradeep Kumar ......petitioner Versus State of Haryana .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.K.Yadav, Advocate, for the petitioner. **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (“Cr.P.C” for short) for quashing of the order dated 7.12.2009 passed by the Additional Chief Judicial Magistrate, Narnaul, whereby the application filed by the prosecution under Section 319 Cr.P.C. was allowed and the order dated 7.7.2010 passed by the Additional Sessions Judge, Narnaul, whereby the revision filed by the petitioner against order dated 7.12.2009 summoning the petitioner has been ordered to be dismissed. Learned counsel for the petitioner has submitted that the trial Court had committed an error while summoning the petitioner to CRM-M No.20160 of 2010 (O&M) 2 face the trial as an additional accused under Section 319 Cr.P.C. There was no fresh material available on record to summon the petitioner to face the trial as an additional accused. The petitioner had been found innocent during investigation by the police. Now the petitioner has been summoned only on the basis of the statement of the complainant. In support of his arguments, learned counsel has placed reliance on Hukam Chand and another vs. State of Haryana and another 2007 (3) RCR (Criminal) 141, wherein in para 5, it was held as under:- “ I have heard learned counsel for the parties, Concededly, the matter was investigated by the police after the FIR had been recorded on the statement of the complainant. The petitioners had been found innocent and were placed in the column No.II. Thereafter, during the course of proceedings, the statement of the complainant was also recorded, which in fact, was merely a reiteration of what has been stated in the FIR. No other evidence was there before the Court on the basis of which complicity of the petitioners could be established. The Hon'ble Supreme Court in a judgment reported as Michael Machado vs. Central Bureau of Investigation, 2000 (2) RCR (Criminal) 75 (SC) has observed as under:- '11. The basic requirement for invoking CRM-M No.20160 of 2010 (O&M) 3 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, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained 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 as tried along with the already arraigned accused. 12.But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the court may proceed against such person”. The discretionary power so conferred should turn against another person whenever it comes across evidence connecting that CRM-M No.20160 of 2010 (O&M) 4 another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against each other persons.” For summoning under Section 319 Cr.P.C., there has to be some evidence before the court which would indicate the complicity of the persons who are sought to be summoned or some material should have come on record which may prompt the court to believe that the persons so accused are likely to be involved, and their conviction is likely to result in the eventuality of their facing the trial, and the onslaught of the evidence to be adduced by the prosecution. The mere statement, ipso facto, cannot from the basis of summoning the persons under Section 319 of the Cr.P.C.” Learned counsel has further placed reliance on Usha Mehta vs. State of Punjab and another 2009 (2) RCR (Criminal) 220, wherein in para Nos. 16 and 17, it was held as under:- CRM-M No.20160 of 2010 (O&M) 5 “The trial court while summoning the petitioner as an additional accused has observed that evidence must be sufficient to make out prima facie case against such a person and satisfy all the essential ingredients constituting the offence for which he or she is sought to be prosecuted. Having said so, the court has also observed that is duty bound to summon such a person as an additional accused to stand her trial along with other accused and that it appears that the petitioner also committed an offence punishable under Section 304B IPC. No doubt, in some of the recent cases, the standard laid down in Michael Machado's case (supra) and Mohd. Shafi's case (supra) has been diluted and the matter is now referred to larger Bench for consideration but it may still require consideration whether this standard would statisfy the requirement of law to summon the petitioner as an additional accused in view of the law laid down in the cases of Michael Machado's case (supra) and Mohd. Shafi's case (supra) and other cases as referred to above. The trial court obviously has gone by the test that it appears that the petitioner is involved in the commission of offence. Will this test suffice or likelihood of conviction, would be needed, is the question which would need consideration of the trial Court to add the CRM-M No.20160 of 2010 (O&M) 6 petitioner as additional accused. The trial Court may be required to reconsider the whole issue in the light of the above noted legal position and see if the evidence would satisfy the test to summon the petitioner as an additional accused. It may have to be noted that observations in Rajendra Singh's case (supra) are by Hon'ble one Judge constituting the Bench.” “The case is accordingly remitted back to the trial Court to re-consider the evidence and to pass an order afresh to either summon or decline summoning of the petitioner as an additional accused. This court has not expressed any opinion on merits and it shall be entirely in the discretion of the Court to re-decide the whole issue in the light of various judgments passed by the Hon'ble Supreme Court and other law that may be placed before that court.” Learned counsel has also placed reliance on Surinder Kumar Changli vs. State of Punjab 2006 (2) RCR (Criminal) 359, wherein in para Nos. 14 and 15, it was held as under:- “A perusal of the impugned order reveals that the trial Court has failed to exercise jurisdiction in accordance with the provisions of Section 319 Cr.P.C. of the Code. The operative part of the impugned order reads as follows:- CRM-M No.20160 of 2010 (O&M) 7 I am of the opinion that on the basis of this statement and other material discussed above, Inderjit Singh @ Bhola and Surinder Kumar Changli should also be summoned to face trial with Gurdeep Singh accused for the murder of Bhalinder Singh. The process be issued against both of them for 20.1.2004. The present Pws are discharged.” “Apart from recording its opinion that the petitioners should be summoned to stand trial, no reasons whatsoever have been assigned for the opinion so formed. The impugned order does not set out any “reasonable satisfaction” judicial or otherwise as to why the petitioners should stand trial along with the other accused. The order in my considered opinion, does not meet the requirements of an order to be passed in exercise of powers under Section 319 of the Code. The order, has been passed mechanically, without recording reasons and without considering the entire material on record.” After hearing learned counsel for the petitioner, I am of the opinion that this petition deserves dismissal. It has been held by the Apex Court in case Suman Vs. State of Rajasthan and another, (2010) 1 Supreme Court Cases CRM-M No.20160 of 2010 (O&M) 8 250 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 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 CRM-M No.20160 of 2010 (O&M) 9 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 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 was 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. was not given and the marriage party was not served well and that on the instigation's of the mother-in-law and the appellant CRM-M No.20160 of 2010 (O&M) 10 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 was 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 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.PC. The approach adopted by the High Court is in consonance with the settled law. Although at CRM-M No.20160 of 2010 (O&M) 11 one stage, the Sessions Judge allowed the Misc. 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 Misc. 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 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 CRM-M No.20160 of 2010 (O&M) 12 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.” Thus, as per Section 319 Cr.P.C., whenever during the course of trial, it appears from the evidence that any person not being accused had committed the offence for which he could be tried together with the accused facing the trial, the Court may proceed to summon such person to face the trial. In the present case, although the petitioner was found innocent during investigation but there are serious allegations against the petitioner. PW-1 Satpal, while appearing in the witness box, has reiterated his stand that the petitioner had inflicted injury on his head with bankri. Co-accused Sumitra had inflicted injury with a stick on the left shoulder of the injured. Co-accused Surinder had inflicted injury on the left wrist with a jelly. It is not a case where the CRM-M No.20160 of 2010 (O&M) 13 injured has not suffered any injury on his head. The injury on the head of the complainant has been attributed to the petitioner. Merely because the petitioner was found innocent during investigation is no ground to discard the statement of PW-1 on oath before the Court. Since a specific role is attributed to the petitioner by PW-1, he is liable to be summoned to face the trial. In these circumstances, learned trial Court had rightly allowed the application under Section 319 Cr.P.C. filed by the prosecution to summon the petitioner as an additional accused to face the trial. The judgments relied upon by learned counsel for the petitioner fail to advance the case of the petitioner as these are based on different facts. Hence, no ground for interference by this Court is made out. Dismissed. SABINA) JUDGE August 10, 2010 anita