IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2332 of 2009 Date of decision: 23.7.2010 Vikram and others ......Petitioners Vs. State of Haryana ...Respondent CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.Baldev Singh, Sr. Advocate assisted by Mr.Deepender Singh, Advocate, for the petitioners. Mr. R.S.Rawat, AAG, Punjab. Mr.N.K.Sanghi, Advocate, for complainant. **** ORDER The present revision petition has been filed against summoning order dated 18.8.2009 passed by Additional Sessions Judge (I), Bhiwani vide which petitioners Vikram, Poonam and Ram Niwas have been summoned under Section 319 Cr.P.C. as additional accused in case FIR No.15 dated 16.2.2009 under Sections 304B/406/498A/506 IPC registered at Police Station, Baund Kalan to face trial along with the main accused. Notice of motion was issued in the case on 8.9.2009 and personal appearance of the petitioners was exempted before the trial Court. Mr.Baldev Singh, learned Senior Counsel for the petitioners submits that the petitioners have wrongly been summoned in the case whereas they were nothing to do with the matrimonial life of the deceased. The FIR in the case was registered after a long delay which is ante-timed Crl. Revision No. 2332 of 2009 [2] and based on totally false allegations. The allegations against the petitioners are vague and omnibus whereas no specific overt-act has been alleged with regard to demand of dowry or harassment against the present petitioners. Even in the statement of Shashi Parbha, mother of deceased, before the Executive Magistrate on 22.2.2009, she had not made any specific allegations against any of the petitioners. Mr. Baldev Singh, learned Senior Counsel further submits that the case was investigated by Senior Police Officers and the petitioners were found innocent and they were not challaned and their names were shown in column No.2 of the report under Section 173 Cr.P.C. The summoning order has been passed only on the basis of statement of Neeraj Kumar recorded during trial and no other material witnesses were examined before moving of said application. Learned counsel for the petitioners also relied upon various judgments to show that the Court should summon a person as additional accused only when the Court is satisfied that evidence against him would lead to conviction and the power of the Court for summoning of additional accused must be exercised with great care and caution as the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case. Mr.Baldev Singh further submits that only in case of compelling reasons, Court should summon additional accused. As per statement of Neeraj Kumar while appearing as PW-1, he has stated that on receiving information of the deceased, all family members reached J.B.Gupta Hospital, Bhiwani and petitioner Ram Niwas was present there by the side of the deceased which shows his innocent conduct. Petitioner Crl. Revision No. 2332 of 2009 [3] Ram Niwas was attending marriage reception of a close relative at Delhi on 16.2.2009 and this plea was accepted by the police during investigation. During his statement, PW Neeraj Kumar did not mention anything with regard to demand of Rs.5 lacs by way of dowry. Even as per statement of Randhir Singh, the father of deceased, the alleged demand of Rs.5 lacs was made by co-accused Virender whereas there is no allegation against the petitioners in this respect. Learned counsel for the petitioners relies upon the judgments of Hon'ble the Apex Court in Kans Raj v. State of Punjab and others 2000 Crl.L.J.2993, Sarabjit Singh and another v. State of Punjab and another [2010] 2 Supreme Court Cases (Cri) 141, Ram Singh and others Vs. Ram Niwas and another [2010] 1 Supreme Court Cases (Cri) 1278 and of this Court in Isham Singh and others v. State of Haryana 2004(2) RCR (Criminal) 279 in support of his contention. Mr. N.K.Sanghi, learned counsel for the complainant submits that in the statement of complainant Neeraj Kumar before the police as well as before the Court, there is specific mention that all the accused took active part in the commission of offence. Mr. Sanghi further submits that names of the petitioners have been mentioned in the statements of other witnesses namely Randhir and Shashi Prabha which were recorded by the Executive Magistrate. There is sufficient evidence on file against all the three accused-petitioners as well as main accused Virender who is already facing trial. Mr.Sanghi relies upon the judgments of Hon'ble the Supreme Court in Suman v. State of Rajasthan and another 2009 (4) RCR (Criminal) 908 and Harbhajan Singh and another v. State of Punjab Crl. Revision No. 2332 of 2009 [4] and another 2009(3) R.C.R. (Criminal) 916 in support of his contention. I have heard the arguments of learned counsel for the parties and have also gone through the complaint as well as summoning order and other material available on record. In this case, FIR was registered on the basis of statement of complainant Neeraj Kumar, the brother of deceased Pooja. Initially FIR was registered against Virender (husband), Ram Niwas (father-in-law), Vikram (Jeth) and Poonam (Jethani). Investigation was conducted by the police and accused Vikram, Poonam and Ram Niwas were found innocent and were kept in column No.2. Later on, an application was moved by the prosecution under Section 319 Cr.P.C. for summoning of additional accused namely Vikram, Poonam and Ram Niwas which was allowed by the trial Court and summoning order has been passed against the present petitioners on the ground that there is sufficient evidence on the file against the petitioners and prima facie their participation along with main accused Virender Singh has been proved in the commission of alleged offence. The complaint as well as the summoning order have been challenged by the petitioners by way of filing the present revision petition on the ground that thorough investigation was conducted by the police and they were found innocent as they were neither concerned in any manner with the demand of dowry nor any harassment was ever caused to the deceased. It is the case of the petitioners that Vikram and his wife Poonam are residing separately and no specific allegations are there to involve them in the alleged offence. As far as the case of accused Ram Niwas is concerned, he was not present at the time of occurrence and was away to Crl. Revision No. 2332 of 2009 [5] Delhi to attend the marriage of some close relative. The alleged demand of dowry of Rs.5 lacs was made by the main accused. The impugned order has been passed only on the basis of statement of complainant Neeraj Kumar. From the contents of the FIR as well as statements of Neeraj Kumar, Randhir Singh and Shashi Parbha made before the Executive Magistrate, no specific role has been attributed to the petitioners. Even in the statement of Neeraj Kumar PW-1, nothing has been mentioned with regard to demand of Rs.5 lacs. As per his statement, demand of Rs.5 lacs was made by Virender. The summoning order has been passed only on the basis of statement of Neeraj Kumar complainant who has merely reiterated what he has already stated in his statement before the police on which basis the FIR was registered. Although he has made some improvement and on the basis of that improved version, the trial Court has passed the summoning order. Except the statement of Neeraj Kumar, no other evidence is there to connect the present petitioners with the alleged offence. Even deceased Pooja was taken to J.B.Gupta Hospital, Bhiwani by petitioner Ram Niwas and was given medical treatment. She was also taken to Ganga Ram Hospital, New Delhi, as referred by J.B.Gupta Hospital, Bhiwani and she was given best treatment available in the hospital. It has also come on the record that Vikram was married on 16.2.2006 i.e. before marriage of the deceased with Virender and Vikram and his wife Poonam were residing separately having separate ration-card since the year 2005 and even their house was situated in different street. It is well settled that Court should summon a person as Crl. Revision No. 2332 of 2009 [6] additional accused only when it appears to the Court that evidence against him would lead to conviction. Power under Section 319 Cr.P.C. has to be exercised very sparingly and not as a matter of course. Court is not to summon a person only on the ground that prima facie case has been made out but Court is to arrive at a decision that evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the person sought to be summoned. This view finds supported by the judgments of Ram Singh and others v. Ra, Niwas and another 2009 (3) RCR (Criminal) 501 and Sarabjit Singh and another v. State of Punjab and another 2009 (3) RCR (Criminal) 388 wherein Hon'ble the Apex Court has observed as under: “ A. Criminal Procedure Code, Section 319- Summoning a person as additional accused- A person should not be summoned to face trial if prima facie case was made out against him- A person should be summoned only when Court finds that evidence on record is such which would reasonably lead to conviction of person sought to be summoned. C. Criminal Procedure Code, Section 319- Summoning a person as additional accused- Section 319 Cr.P.C. confers discretionary jurisdiction on Court to summon person as additional accused to face trial – This is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking Crl. Revision No. 2332 of 2009 [7] cognizance against the other other person against whom action has not been taken,” Moreover, there is always a tendency to rope in all the family members of the accused party and this tendency has been deprecated by Hon'ble the Apex Court on number of times as in case Kans Raj v. State of Punjab and others 2000 Crl.L.J. 2993, wherein it has been observed as under: “ That a tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused.” In the present case also, petitioners Vikram and Poonam have been residing separately and got married much earlier to the marriage of Pooja and Virender and they had no occasion to interfere in their married life. Ram Niwas is also an old person whose wife has also expired earlier and he is a senior citizen and even he was not present as he was away to attend the marriage of some close relative at Delhi on that day. Crl. Revision No. 2332 of 2009 [8] In case of Isham Singh and others v. State of Haryana 2004 (2) R.C.R.(Criminal) 279, this Court has observed as under: “ A. Criminal Procedure Code, Section 319- Order summoning a person as additional accused on basis of statement of complainant- Order quashed when no other evidence was on record. B Criminal Procedure Code, Section 319- Summoning of additional accused- Court should exercise power sparingly and primarily to advance the cause of criminal justice but not as a handle at the hands of the complainant to cause harassment to the person who is not involved in the commission of the crime. 2000(2) RCR (Crl.) 75 (SC) relied. C. Criminal Procedure Code, Section 319- Summoning of additional person as accused – Court has discretion to summon a person as accused but no person should be summoned merely on doubt- Court must have reasonable satisfaction that the person has committed the offence – Order of Court summoning other person on basis of statement of complainant set aside- Statement of complainant was an improvement.” Keeping in view the facts and circumstances as mentioned above, there is no evidence on record to show the involvement of the present petitioners and the impugned summoning order has been passed Crl. Revision No. 2332 of 2009 [9] without taking into consideration the facts and circumstances as mentioned above as well as the law position. The petition deserves to be allowed. Accordingly, the present petition is allowed and summoning order dated 18.8.2009 passed by Additional Sessions Judge-I, Bhiwani is set aside. (DAYA CHAUDHARY) JUDGE July 23, 2010. raghav