Crl. Revision No.3125 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.3125 of 2009 (O&M) Date of Decision: May 14, 2010 Angrej Kaur ........Petitioner Versus State of Punjab & others ........Respondents CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. Manvinder Singh Sidhu, Advocate for the petitioners. Mr. Amandeep Singh Rai, AAG, Punjab. Mr. J.P. Singh, Advocate for respondents No.2 to 4. SABINA, J. Petitioner has filed this revision under Section 401 of Code of Criminal Procedure (in short 'Cr.P.C.') challenging the order dated 14.10.2009, passed by Sessions Judge Ferozepur, whereby application moved by the prosecution under Section 319 Cr.P.C. for summoning respondents No.2 to 4 was dismissed. The petition was got dismissed as withdrawn qua respondent No.4 by the learned counsel for the petitioner vide order dated 8.12.2009. The prosecution case is based on the statement of the complainant Angrej Kaur which has been reproduced in para 2 of the grounds of revision and it reads as under :- “ I am resident of village Kundal and doing household work. Today my husband Baldev Singh son of Nazar Singh Crl. Revision No.3125 of 2009 (O&M) 2 and my son Kuldip Singh and Gurvinder Singh had gone to field for work and it was our turn of water in the evening, so I alongwith Harnek Singh son of Banta Singh, caste Jat, resident of Ruhrianwali and Shivraj Singh son of Gurdeep Singh, resident of Daulatpura who has come to meet us had taken them along to deliver tea at the fields and it was about 6.30 PM and Gursewak Singh son of Gurcharan Singh armed with spade, Jagsir Singh alias Jagga son of Gurcharan Singh armed with spade, Sikandar Singh son of Balkar Singh, caste Majhabi Sikh, armed with spade, Darshan Singh son of Mall Singh caste Jat, resident of Kundal armed with dang and one more unknown person armed with dang, whom I can recognize on appearance were talking loudly with my husband and son Kuldeep Singh for breaching turn of water in the land which we have taken on lease from Gurjant Singh on the Nakka of the pacca watercourse. When we were little behind from them and my husband Baldev Singh and son Kuldeep Singh tried to remove the cement lid installed in the nakka after entering into the water course, then Gursewak Singh raised lalkara that “they quarrel on every turn of water, let us finish the everydaty dispute” on which Jasgir Singh inflicted three spade blows on the head of my son Kuldeep Singh with intention to kill, who had lowered to remove the lid in the water course, Gursewak Singh inflicted spade blows on the head of my husband Baldev Singh who had lowered himself in order to remove the lid and the remaining persons Crl. Revision No.3125 of 2009 (O&M) 3 standing besides, kept on raising lalkara. My husband as a result of these injuries fell in the Khal in which the water was flowing and my son Kuldeep Singh fell in the standing water towards the kacha Khal, I, Harnek Singh and Shivraj Singh raised raula “Na Maro Na Maro”, in the meanwhile my son Gurwinder Singh who have gone back on the water course to check the flow of water also came and witness the occurrence and raised raula “Na Maro Na Maro” on which all these people ran away from the place of occurrence with their respective weapons. We went close to my husband and my son and saw that my husband Baldev Singh and son Kuldeep Singh have died due to injuries and motive behind causing injuries is that there is a dispute of water between us and Gursewak Singh, as a result of this all these persons have murdered my husband and son Kuldeep Singh with a common intention after leaving my sons Gurwinder Singh and Harnek Singh on the spot near the deep bodies, I alongwith Shivraj Singh, am going to the police station to give information, you met, I have got my state recorded and heard the same which is correct. Action may kingly be taken. RTI Angrej Kaur @ Harbans Kaur.” Learned counsel for the petitioners has submitted that respondent Nos.2 and 3 had raised a lalkara which had instigated their co- accused to commit murder of Baldev Singh and Kuldeep Singh. Learned counsel has placed reliance on decision of the Apex Court in case of Suman Vs. State of Rajasthan and another, (2010) 1 Supreme Court Cases 250 as Crl. Revision No.3125 of 2009 (O&M) 4 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 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.” Crl. Revision No.3125 of 2009 (O&M) 5 “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.” “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 Crl. Revision No.3125 of 2009 (O&M) 6 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 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.” Section 319 of the Code of Criminal Procedure reads as under :- Crl. Revision No.3125 of 2009 (O&M) 7 “ Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any inquiry into, or trial of, and 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 maybe arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under 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 the 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 commented.” Learned counsel for the respondents, on the other hand, has opposed the petition and has submitted that the respondents No.2 and 3 have been falsely involved in this case. There is no dispute that power under Section 319 Cr.P.C. vests in the Crl. Revision No.3125 of 2009 (O&M) 8 trial Court to summon a person as an additional accused wherein during the course of trial it appears to the trial Court that any other person who also committed the offence, be tried together with the accused. However, in the present case the respondents No.2 and 3 have been attributed a lalkara and thus as per the case of the complainant they were instigating other accused to commit murder of Baldev Singh and Kuldeep Singh. No injury on the person of the deceased is attributed to the petitioners. During investigation, it was found by the Investigating Agency that the petitioners were not present at the spot. In these circumstances, the learned trial Court rightly dismissed the application moved by the prosecution under Section 319 Cr.P.C. The judgment relied upon by the learned counsel for the petitioner fails to advance1 the case of the petitioner. Dismissed. (SABINA) May 14, 2010 JUDGE Anand