Crl.Rev.No. 1582 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 1582 of 2011 (O&M) Date of decision: 25.7.2011 Gurdev Singh ......Petitioner Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.P.S.Dhaliwal, Advocate, for the petitioner. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 challenging the order dated 22.4.2011 passed by the Additional Sessions Judge, Barnala, whereby the application filed by the State under Section 319 Cr.P.C for summoning the petitioner as an accused to face trial was allowed in case FIR No. 85 dated 25.6.2010 registered at Police Station Tapa under Section 302 of the Indian Penal Code. Learned counsel for the petitioner has submitted that there was no fresh material available before the trial Court to summon the petitioner to face the trial. Medical evidence also did not corroborate the ocular version. After hearing learned counsel for the petitioner, I am of Crl.Rev.No. 1582 of 2011 (O&M) 2 the 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 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 Crl.Rev.No. 1582 of 2011 (O&M) 3 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, 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 Crl.Rev.No. 1582 of 2011 (O&M) 4 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 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 Crl.Rev.No. 1582 of 2011 (O&M) 5 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.” Section 319 reads as under:- “Power to proceed against other persons appearing to be guilty of offence:- 1) where, in the course of any 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 which he appears to have committed. 2)Where such person is not attending the Court he may be 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 witnesses re-heard. b) subject to the provisions of clause (a), the case may Crl.Rev.No. 1582 of 2011 (O&M) 6 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 commenced.” In the present case, FIR was registered against the petitioner and others on the basis of statement made by Jassa Singh. It was averred by the complainant in his statement before the police that on 24.6.2010, he along with his family members was present in his house. The complainant and his brother Karamjit Singh came out of the house and sat in the doorway. Father of the petitioner started clearing the grass out of the drain to facilitate the water flow as it had started raining at 10 p.m. In the meantime, Jarnail Singh @ Karnail Singh armed with kasia, Sukhdev Singh @ Sukha armed with ghop, Gurdev Singh armed with gandasi came at the spot. Jarnail Singh @ Karnail Singh gave a kasia blow on the back side of the head of the father of the complainant. Sukhdev Singh gave a ghop blow on the lip of the father of the complainant towards left side. Gurdev Singh gave a gandasi blow on the forehead of the father of the complainant. Gurdial Singh fell down and Jarnail Singh @ Karnail Singh gave another blow with Kasia on his mouth towards left side. When the complainant party raised alarm, accused fled away from the spot alongwith their respective weapons. Gurdial Singh, however, succumbed to his injuries. After investigation of the case, challan was presented against accused Jarnail Singh @ Karnail Singh. During trial, an application was moved by the prosecution under Section 319 Cr.P.C. to summon the petitioner and Sukhdev Singh as additional accused. Vide the impugned order, the said application was allowed. Crl.Rev.No. 1582 of 2011 (O&M) 7 The complainant, while appearing in the witness box, has specifically stated that the petitioner had given a gandasi blow from the sharp side on the forehead of his father. A perusal of the postmortem report (Annexure P-4) reveals that there are three injuries on the head of the deceased. The deceased had suffered injuries on his right parietal region and left parietal region and on the right occipital region. Although during investigation, the petitioner was found to be innocent, yet during trial sufficient material has come on record qua involvement of the petitioner in the alleged occurrence. Hence, the trial court had rightly passed the impugned order, whereby the petitioner was summoned to face the trial as an additional accused. Hence, no ground for interference by this Court is made out. Dismissed. SABINA) JUDGE July 25, 2011 anita