Crl. Rev. No.3324 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No.3324 of 2010 Date of Decision: 16.12.2010 Parkash Singh & another ....Petitioners Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. K.S. Bassi, Advocate for the petitioners. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 397/401 Cr.P.C for setting aside the order dated 13.11.2010 passed by Additional Sessions Judge, Patiala of summoning the petitioners to face trial under Sections 304-B and 302 IPC. The FIR under Sections 304-B, 302, 498-A and 34 IPC was registered against three accused i.e. Lakhbir Singh, Parkash Singh and Kulwant Kaur on the basis of the statement of Gurjant Singh, who is the father of the deceased Kiranjit Kaur. Facts in short are that the daughter of the petitioner was married to Lakhbir Singh in December 2005. On 02.10.2009, the complainant received information that his daughter has been killed by her in-laws. Accordingly, the FIR was got registered by him against three accused i.e the husband, father-in-law and mother-in-law of the deceased. The husband-Lakhbir Singh was arrested. The matter was investigated. Crl. Rev. No.3324 of 2010 2 Kulwant Kaur-petitioner No.2 was found innocent. Accordingly, the challan was presented under Sections 302/498-A IPC in addition to Section 304- B/34 IPC against Lakhbir Singh and petitioner No.1. A supplementary challan under Section 173(8) Cr.P.C was presented against the accused Lakhbir Singh charging him with the offence under Section 302 IPC. The petitioner No.1 was also found innocent and was kept in column No.2 in the supplementary challan. Thereafter, the complainant was examined in the Court on 04.08.2010 and was subjected to cross-examination. On the said statement, the State moved an application under Section 319 Cr.P.C. Accordingly, the present petitioners were summoned under Sections 304- B/302 IPC along with the present accused Lakhbir Singh. While challenging the impugned order P-1, vide which, the present petitioners have been summoned on the basis of an application under Section 319 Cr.P.C., learned counsel for the petitioners submitted that the supplementary challan came to be presented in the Court, in which, both the petitioners were found innocent. The Court did not take a notice of the same and went on to summon the petitioners to face trial as if it was a mere formality. It is also contended that Lakhbir Singh has been challaned under Section 302 IPC in the supplementary challan. Hence, no chalan could have been filed against the present petitioners under Section 304-B IPC. It is further submitted that the petitioners were not summoned under Section 498-A IPC, therefore, the questioning of summoning the petitioners under Section 304-B/302 IPC does not arise. Heard. Taking up the first argument of learned counsel for the petitioners that the second supplementary challan has not been taken into consideration, has no merit. Para 5 of the order dated 13.11.2010 passed by the Additional Sessions Judge, Patiala shows that the supplementary Crl. Rev. No.3324 of 2010 3 challan was duly taken into consideration. Even otherwise, the petitioners have been summoned on the basis of an application under Section 319 Cr.P.C and not on the basis of the report. In fact, Section 319 Cr.P.C is resorted only in order to summon a person as additional accused or an accused, against whom, the challan has not been filed. The said application was moved on the basis of evidence led before the Court. Thus, the petitioners have been summoned on the basis of the statement of complainant- Gurjant Singh PW-1 made on oath, who was also cross- examined. The argument that the petitioners cannot be challaned under Section 304-B IPC as Lakhbir Singh has been challaned under Section 302 IPC in the supplementary challan also does not help the petitioners. It is admitted that the petitioners have been summoned under Section 304-B IPC as well as under Section 302 IPC. The second argument of learned counsel for the petitioners that there was no allegation against the present petitioners in the statement, is also incorrect. As per the statement of the complainant, the present petitioners, after about six months of the marriage of his daughter, had started beating and harassing his daughter and asked her to bring cash from her parents as Lakhbir Singh was an unemployed person and money was needed for starting a business for him. It was further mentioned that Lakhbir Singh and his parents gave beatings to his daughter and turned her out of matrimonial home just three months prior to her death. The said statement further goes on to read as under:- “On 24.09.2009, it was Thursday, the accused and his parents again gave beatings to my daughter and turned her out of matrimonial home.” Thus, the report of the Investigating Officer or the satisfaction of the Investigating team has to be given primary importance, cannot be accepted in view of the settled proposition of law under Section Crl. Rev. No.3324 of 2010 4 319 Cr.P.C. where the evidence before the Court is what has to be appreciated. There is absolutely no dispute with the well settled proposition of law as laid down in the case of Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, wherein while considering the basic requirements of Section 319 of the Code, Court said that the extra ordinary power under Section 319 Cr.P.C should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier and that such an evidence should be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. Thus, each case has to be seen on its own merits and as per the evidence before it. Hon’ble the Supreme Court in the case titled as Suman vs. State of Rajasthan reported as 2009(4) R.C.R.(criminal) 908, held in 15 as under :- “15. In view of the settled legal position as above, we hold that a person who is named in the first information report 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. As a corollary, we hold that 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.” Applying the test as aforesaid to the facts of the present case, Crl. Rev. No.3324 of 2010 5 the present revision petition deserves to be dismissed. In the present case, the allegations against the accused are that they demanded dowry and subjected the deceased to cruelty for un- lawful demand immediately before her death. It is further alleged that the deceased was even beaten up by the three accused just three months prior to the said incident. The fact that while summoning the petitioners, Section 498-A IPC has not been mentioned, makes no difference at this stage as the charges are yet to be framed against the petitioners and the same can be duly formulated and modified at any stage of the trial and as per the evidence before the same. Therefore, the learned Sessions Judge had objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C for taking cognizance against the present petitioners. Accordingly, the present petition is dismissed being devoid of merit. (NIRMALJIT KAUR) 16.12.2010 JUDGE gurpreet