CRR No.2630 of 2008 (O & M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CRR No.2630 of 2008 ( O & M) Date of decision : 10.8.2011 Balak Ram and another ........Petitioners Vs. UT, Chandigarh and another ......Respondents CORAM : HON'BLE MR. JUSTICE AJAI LAMBA Present:- Mr.S.K.Garg, Advocate, for the petitioners Mr.D.D.Sharma, Advocate, for UT, Chandigarh --- AJAI LAMBA, J (Oral) Notice was issued to serve respondent No.2 complainant/prosecutrix. Repeated attempts have been made to trace the said respondent, however, without any positive result. This petition prays for quashing of order dated 27.9.2008 passed by Additional Sessions Judge, Chandigarh vide which the petitioners have been summoned under Section 319 of the Criminal Procedure Code, 1973 to stand trial as additional accused for commission of offence under Section 120B and 420 read with Section 417 of the Indian Penal Code in context of offence committed under Section 376 of the Indian Penal Code. The facts in brief, as emerged from the impugned order, are that FIR was registered at the instance of PW-7-the prosecutrix, against Sanjay Sharma for commission of offence under Sections 376 and 420 of the Indian Penal Code on the allegations that Sanjay Sharma knew that he was married and dishonestly induced the prosecutrix by allurement while concealing his CRR No.2630 of 2008 (O & M) -2- earlier marriage. Sanjay Sharma took the prosecutrix to his native village and contracted marriage with her in the presence of family members, cousin brothers who allegedly knew that Sanjay Sharma was already married. The said persons participated in the marriage and also pressurized the prosecutrix to go in for the marriage. Only Sanjay Sharma has been nominated as an accused by the Investigating Agency for commission of offence under Sections 376 and 420 of the Indian Penal Code. No incriminating material was found against the petitioners so as to nominate the petitioners by the Investigating Agency as accused and therefore, the petitioners were placed in Column No.2 of the final report under Section 173 of the Criminal Procedure Code, 1973. After recording of statement of the prosecutrix-PW-7, an application under Section 319 of the Criminal Procedure Code, 1973 was filed so as to summon the petitioners as additional accused. Vide impugned order, after taking into account the law in regard to jurisdiction to summon a person as additional accused under Section 319 of the Criminal Procedure Code, on the basis of statement of PW-7, the petitioners have been summoned to stand trial. In para 11 of the impugned order reference has been made to cross examination of the prosecutrix to the effect that a suggestion was given by counsel for the main accused (Sanjay Sharma) that prosecutrix herself got married with the main accused on her own consent in the presence of family members of the accused in the native village temple. Another suggestion has been put to her that Ram Pyari is only the wife of a friend of Sanjay Sharma. The said portion of statement of the prosecutrix has been ignored on the ground that the stand of Sanjay Sharma in bail application was different. Stand of Sanjay Sharma in the bail application has been taken as CRR No.2630 of 2008 (O & M) -3- admission on the part of Sanjay Sharma to the effect that he was married with Ram Pyari. No child was born from the marriage and therefore, a proposal was made to the prosecutrix for marriage. Prosecutrix was a consenting party. The petitioners have been summoned as additional accused, primarily on the ground that they were having knowledge about the earlier marriage of Sanjay Sharma and were present at the time of marriage ceremonies. Learned counsel appearing for the respondent-State has not been able to draw attention of this Court towards any material that could possibly ascribe a positive role on the part of the petitioners in committing the offence of cheating as defined under Section 415 of the Indian Penal Code. Per-se by virtue of the presence of the petitioners, the offence of cheating cannot be ascribed to the petitioners so as to summon them as additional accused. The stand of Sanjay Sharma (non-petitioner) in his bail application, in any case, could not have been considered as the stand of others, viz. the petitioners. In the considered opinion of this Court, the petitioners could not have been summoned as additional accused for the reasons that thorough investigation under Chapter XII of the Criminal Procedure Code, 1973 has been conducted so as to find out the role of the petitioners in commission of offence. No incriminating material could be traced against the petitioners. Sanjay Sharma and prosecutrix both lived in Chandigarh and knew each other from earlier. They went to the native village of Sanjay Sharma only to perform marriage in the temple. Simply, because the petitioners happened to be there, it cannot be presumed that the petitioners instigated the prosecutrix to get married to Sanjay Sharma or that they intentionally concealed the CRR No.2630 of 2008 (O & M) -4- factum of earlier marriage of Sanjay Sharma. Accused Sanjay Sharma-the main accused and the prosecutrix went to the village for marriage. The petitioners as cousin brothers merely attended the marriage and in such circumstances, could not have been ascribed, per-se, on account of their attending the marriage, the act of persuading the prosecutrix fraudulently or dishonestly inducing the prosecutrix to get married to Sanjay Sharma. If at all, the beneficiary is Sanjay Sharma and not the petitioners. They have been primarily roped in because they happen to be cousin brothers of Sanjay Sharma. In such circumstances, it would be abuse of process of Court and abuse of the process of law even to ask the petitioners to be arrayed as additional accuseed. Considering the peculiar facts & circumstances of the case, the petition is allowed. Order dated 27.9.2008 is hereby quashed. (AJAI LAMBA) JUDGE 10.8.2011 akm