Crl.Rev.No. 1191 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 1191 of 2010 (O&M) Date of decision: 20.5.2010 Harminder Singh Kohli ......Petitioner Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Baldev Singh, Sr. Advocate with Mr.Deepinder Singh, Advocate, for the petitioner. Mr.Amandeep Singh Rai, AAG, Punjab. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure (“Cr.P.C” for short) challenging the order dated 27.3.2010 passed by the Additional Sessions Judge, Fast Track Court, Ludhiana, whereby the petitioner was summoned as an accused to face trial on the application filed by the State under Section 319 Cr.P.C. in case FIR No.48 dated 24.7.2006 registered at Police Station Kotwali Ludhiana under Sections 302, 201, 364, 404, 148, 149, 120 of the Indian Penal Code. After hearing learned counsel for the parties, I am of the Crl.Rev.No. 1191 of 2010 (O&M) 2 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 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 Crl.Rev.No. 1191 of 2010 (O&M) 3 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 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 were 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, Crl.Rev.No. 1191 of 2010 (O&M) 4 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 other persons, whose statements were 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 Crl.Rev.No. 1191 of 2010 (O&M) 5 illegality or perversity warranting interference under Section 482 CrPC. 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 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 revision 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.” Learned trial Court, while allowing the application under Section 319 Cr.P.C. has held as under:- “ The contention of Ld. Counsel for the accused is that no new evidence has come, therefore accused Harminder Singh cannot be summoned. He has relied upon the inquiry report and the statement of accused under Section 164 Cr.P.C. Perusal of record shows that in the statement under Section 164 Cr.P.C. he has stated about the facts and has stated about inquiry conducted by Sp-city and has stated that he can identify Karamjit Singh Crl.Rev.No. 1191 of 2010 (O&M) 6 @ Kikki who is actually Balbir Singh @ Golu if he comes before him. Except him he has nowhere stated about the identification of other persons. Perusal of the statement of Gurmail Singh and the report under section 173 Cr.P.C. shows that it has been alleged that Harminder Singh Kohli has told Hari Singh on telephone that he has sent Fateh Singh to Hoshiarpur with his special relatives. In statement before the court Gurmail Singh has again uttered these words that Harminder Singh Kohli alleged that he has sent Fateh Singh with his special relatives whereas in his statement under section 164 Cr.P.C. he is alleging that they were just customers. Since he was alleging them to be his relatives as alleged by Gurmail Singh, this prima facie shows that the might be knowing them and about the programmed of the persons who had hired the taxi from Harminder Singh. The report of SP- City is not on the file but only last page is on the file which shows that Harminder Singh Kohli was declared innocent and recommendation was made that he be incorporated as a witness of the prosecution. But as per record his recommendation was not considered and he was never incorporated as a witness in the list of witnesses of the prosecution rather earlier also application was moved to summon him. Now the complainant has cross examined. Crl.Rev.No. 1191 of 2010 (O&M) 7 There are specific allegations in the complaint, FIR and report under Section 173 Cr.P.C. and in the statement of Gurmail Sigh against accused Harminder Sigh Kohli. As per the law own by the Hon'ble Supreme Court in 2008 (4) RCR (Criminal) that at the stage of issuing summons a court has to see whether there is prima facie case against the person sought to be summoned.” The reasons given by the trial Court, while summoning the petitioner to face the trial as an accused, are good reasons. The complainant has specifically alleged that the taxi in question had been hired from the petitioner. Learned trial Court, after going through the statement of the complainant, FIR and the documents placed on record along with report under Section 173 Cr.P.C., found that there was sufficient material available on record to summon the petitioner as an additional accused. Hence, no ground for interference is made out. Dismissed. SABINA) JUDGE May 20, 2010 anita