Crl. Revision No. 745 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 745 of 2011 (O&M) Date of Decision : March 30, 2011 Poonam Devi ...... Petitioner Versus State of Haryana and others ...... Respondents **** CORAM : HON'BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be allowed to see judgment ? 2. To be referred to reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present : Mr. Sarvjit Singh Khurana, Advocate, for the petitioner. **** Alok Singh, J (Oral) Petitioner-Poonam Devi, by way of present revision petition, is impugning order dated 17.2.2011, passed by Additional Sessions Judge, Rewari, whereby learned trial Court has rejected the application moved un- der Secion 319 of the Code of Criminal Procedure to summon Dheer Singh- brother-in-law (jeth) and Raj Kaur- (mother-in-law) to face trial for an of- fence under Section 498-A/307/323/406/506 of Indian Penal Code in FIR No.93 dated 22.5.2010 registered at Police Station Kasola, District Rewari. Crl. Revision No. 745 of 2011 (O&M) 2 Brief facts necessary for the disposal of this petition are that an application under Section 319 Cr.P.C. was moved before the trial Court al- leged therein that Poonam Devi injured has been examined as PW3 and she has specifically stated that her jeth- Dheer Singh and mother-in-law-Raj Kaur demanded money and ` 50,000/- were given to jeth- Dheer Singh by her father. Even then, there was no change in the behaviour of above said persons and they used to threaten to kill Poonam. She has also stated that a panchayat was also convened in this regard. Even thereafter, demand of ` 2 lacs was made. Dheer Singh had even got transferred the car in his name which was given in the marriage of Poonam. She had also stated that on 9.5.2010, Dheer Singh and Raj Kaur entered into her room and Dheer Singh put a rope around her neck and Raj Kaur caught hold of her legs and Dheer Singh and Samay Singh both pulled the rope as a result she became uncon- scious. She suffered serious injuries to her brain and she has become perma- nent disabled. It has also come in evidence that Dheer Singh and Raj Kaur are having ration card and voter list at village Lodhana. Gajraj father of Poonam has also leveled specific allegations regarding demand of dowry against Dheer Singh and Raj Kaur. There is sufficient evidence against Dheer Singh and Raj Kaur to be summoned under the provisions of Section 319 Cr.P.C. Learned Sessions Judge/trial Court has observed that Dheer Singh (jeth) has been residing at Rewari alongwith his wife and children, whereas Raj Kaur (mother-in-law) is residing separately in the same village and PW-3 Poonam was residing with her husband Samay Singh separately. It has further been observed by the learned trial Court that even other prose- cution witnesses have stated that once they reached at the spot only Poonam and her husband Samay Singh were present. Dheer Singh (jeth) and Raj Kaur (mother-in-law) were not present at the spot. It has further been ob- Crl. Revision No. 745 of 2011 (O&M) 3 served by the learned trial Court that there is no prima facie evidence to summon Dheer Singh (jeth) and Raj Kaur (mother-in-law) as additional ac- cused. I have heard learned counsel for the petitioner and perused the record. Power under section 319 Cr.P.C. can be exercised only when trial Court during inquiry or trial finds that evidence, available on the rec- ord, if stands unrebutted would lead into the conviction and it seems to the Court that persons sought to be summoned are involved in the offence. Hon’ble Apex Court in the matter of Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr. reported in 2000(3) SCC 262 in paragraph Nos. 11 and 12 has observed as under:- “11. The basic requirement for invoking 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 per- son 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 Crl. Revision No. 745 of 2011 (O&M) 4 such person”. The discretionary power so conferred should be exer- cised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence con- necting that 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 other persons.” Hon’ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, reported in 2009(2) RCR (Criminal) 131, in paragraph Nos. 15 and 16 has observed as under:- “15. The ingredients of Section 319 are unambiguous and indi- cate that where in the course of 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 he has committed. 16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” Hon’ble Apex Court in the matter of Sarabjit Singh and Anr. Vs. State of Punjab and another reported in 2009(16) SCC 46, in paragraph no.17 has observed as under:- Crl. Revision No. 745 of 2011 (O&M) 5 17……. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraor- dinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.” Hon’ble Apex Court in the matter of Suman versus State of Rajasthan and another, reported in 2010(1) Criminal Court Cases, 269 (S.C.), in paragraph no.11 has held as under:- “11. Section 319 Cr.P.C. applies to all the Courts including the Ses- sions Court. It empowers the Court to add any person, not being the accused before it, but against whom there appears during trial suffi- cient evidence indicating his involvement in the offence, as an ac- cused and direct him to be tried along with other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a sum- mons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub- section (4) lays down that where the Court proceeds against any per- son under sub-section (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. A reading of the plain language of sub-section (1) of Section 319 Cr.P.C. makes it Crl. Revision No. 745 of 2011 (O&M) 6 clear that a person not already an accused in a case can be pro- ceeded against if in the course of any inquiry into or trial of an of- fence it appears from the evidence that such person has also commit- ted any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be in- ferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be pro- ceeded against even though in the course of any inquiry into or trial of any offence the Court finds that such person has committed any of- fence for which he could be tried together with the other accused.” This Court in the matter of Shivraj Singh vs. State of Haryana and others, Crl. Revision No. 1551 of 2010, decided on 17.02.2011 having placed reliance on the various judgments of the Hon’ble Apex Court includ- ing the judgments cited herein above has held as under:- “From the perusal of the judgments of the Apex Court (supra), it can safely be held that power under Section 319 of the Code can be exercised only when from the evidence available on the record in- volvement of the accused is found by the Court and evidence so led before the Court if stands unrebutted would result in the conviction of the accused sought to be summoned. However, mere suspicion about the involvement of the accused to be summoned from the evi- dence available on record would not justify the exercise of power un- der Section 319 of the Code. Power under Section 319 of the Code is the discretionary power and should be used very sparingly with great care and caution.” In the opinion of this Court, power under Section 319 of the Code must be invoked with great caution and very sparingly when Court is Crl. Revision No. 745 of 2011 (O&M) 7 satisfied that there is sufficient evidence on the record and if such evidence stand unrebutted would lead to the conviction and further Court is satisfied that joint trial seems to be just and proper. Power under Section 319 of the Code should not be exercised when only vague and ambiguous evidence is brought before the Court. While exercising power under Section 319 of the Code Court must bear in mind the tendency of the people to implicate all the relatives in the matrimonial dispute or in the dowry death cases. In view of the admitted fact that Dheer Singh (Jeth) is residing for the last so many years with his family separately in Rewari and Raj Kaur (mother-in-law) is residing separately from Poonam and her husband Samay Singh in the same village and in view of the statements of the other wit- nesses that when they reached at the spot neither Samay Singh nor (mother- in-law) was present in the village, in the opinion of this Court view taken by the trial Court seems to be justified. In the opinion of this Court, order impugned does not require any interference. Dismissed. (Alok Singh) Judge March 30, 2011 Anand