Crl. Misc. No. M-5344 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No.M-5344 of 2008 Decided on : 17-07-2009 Jaleb Khan and others ....Petitioners VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Rajiv Sharma, Advocate for the petitioners. Mr. Ajay Singh Ghangas, DAG, Haryana. MAHESH GROVER, J This is a petition under Section 482 of the Code of Criminal Procedure praying for quashing of impugned order dated 30.11.2007 (Annexure P-12) passed by the Additional Sessions Judge, Fast Track Court, Gurgaon vide which the revision petition preferred by the petitioners against the order dated 18.10.2005 passed by Judicial Magistrate First Class (Annexure P-4) was dismissed. The Judicial Magistrate First Class vide its order dated 18.10.2005 has summoned the petitioners to stand trial pursuant to the provisions of Section 319 Cr.P.C. The revision petition preferred by the petitioners was declined. The petitioners no.1 and 2 are brothers of the husband of the complainant-respondent no.2 and petitioners no. 3 and 4 are their respective wives. Petitioner no.5 is married sister-in-law of the complainant while petitioner no. 6 is mother-in-law of the complainant who has since expired. Crl. Misc. No. M-5344 of 2008 2 Assailing the impugned order, learned counsel for the petitioners has contended that the FIR was a result of a marital discord between the petitioners and complainant-respondent no.2. Primarily his contention is that both the petitioner nos. 1 and 2 alongwith their wives (petitioner nos. 3 and 4) are residing separately. Similarly, petitioner no.5 is also married and residing separately with her husband. Apart from that it is stated that FIR does not specify any allegations against the petitioners. It is also stated that in the statement made by the complainant before the Court no allegations have been made against the petitioners. It is, thus, contended that the powers under Section 319 Cr.P.C have been exercised erroneously by the Court. On the other hand, learned counsel for the State has contended that there are specific allegations against the petitioners which has warranted their summoning under the aforesaid provision of law and the impugned order cannot be termed to be erroneous. I have heard learned counsel for the parties. The contents of the FIR are as follows:- “When I told them the helplessness of my father, my jethani Firdosh sprinkled kerosene on me and my jeth Rahim Khan burnt a match stick to burn me. My husband Kale Khan, Jaleb Khan and Mohammadi caught hold of me.” It is apparent that the petitioners were assigned specific role in that. The police however did not challan these petitioners and ultimately when the statement of the complainant was recorded as PW3 she stated as follows:- “Stated that I was married with Kale Khan according to the Crl. Misc. No. M-5344 of 2008 3 Muslim Rites in the year 1991 who is a resident of Piproli. I was turned out of the house after some days by the accused. After some days they started beating me and gave taunts. I was beaten up by Kale Khan and my sister-in-laws Firdos and Gogli. These persons had beaten me after catching hold of my hair and thereafter I became unconscious. I was confined in a room. I was not give food. On the next day when my father-in- law came I told him through the window and he brought me out of the room. When I was taking water, all the family members were sitting together in the house and they called me and said you should bring a Maruti car and if you told your parents regarding the beatings, we will kill you through fire. After 10- 15 days my brother came to take me and they did not permit me to see my brother nor they allowed me to talk to him. Kale Khan told my brother to come after 2 months. My brother came after 2 months and they sent me with my brother to my house. I told all this incident to all the members of the family. Thereafter my father took a panchayat in which Sardar, Saphu, Rattan, Ibrahim were the members and they went to village Piproli. I had not gone with the Panchayat my Jeth and his parents talk about the demand of dowry in the present of panchayat. They brought a panchayat from Piproli to our village. All these persons apologized before the members of our family and they sent me with them. The articles which I had taken with me was thrown out by my sister-in-law and I stayed there with a dejected mind. Thereafter I came to my Crl. Misc. No. M-5344 of 2008 4 village. I do not remember when I came there. Thereafter I had gone there with my 'Dusser” but they misbehaved with me and demanded dowry. The accused demanded maruti car. The accused beat me up. I had gone to the police after that. I had made a complaint to the police which is Ex.PW3/A. There is my thump impression at point A.” Thereafter, an application was moved before the Judicial Magistrate First Class seeking to summon the petitioners which was allowed and the petitioners were summoned vide order dated 18.10.2005. As stated above, the revision against the said order was also dismissed. The power under Section 319 Cr.P.C has to be exercised sparingly and not in a whimsical manner. Section 319 is reproduced hereunder for ready reference:- 319 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 Crl. Misc. No. M-5344 of 2008 5 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 commenced.” Hon'ble Supreme Court in case titled as Sarabjit Singh and anr. Versus State of Punjab & Anr. 2009(3) RCR (Crl) 388 has observed as under:- “An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. Para 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions Crl. Misc. No. M-5344 of 2008 6 following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not satisfied.” If the material before the Court is to be examined on the backdrop of the observations by the Hon'ble Supreme Court, I am of the considered opinion that it is short of expected material which could warrant the summoning of an accused. There is hardly any material which could be extracted from the statement of the complainant on the basis of which it could be said that prima facie petitioners were involved in the commission of any offence of that evidence before the Court was sufficient to come to a conclusion that such evidence would result in conviction of a petitioner. That apart prima facie there is material on record to show by way of Annexures P-5 to 8 to show that the petitioners have been residing Crl. Misc. No. M-5344 of 2008 7 separately. It is to be noticed that complainant who was arrayed as respondent no.2 and was duly served has chosen not to contest the proceedings. No one is present on her behalf. In this view of the matter, when there is no special evidence before the Courts below on the basis of which a definite conclusive view can be formulated regarding the complicity of the petitioners, their summoning to stand trial under provisions of Section 319 Cr.P.C can at best be termed to be erroneous exercise of powers by the Courts below. Consequently, the petition deserves to be accepted and the impugned orders dated 30.11.2007 (Annexure P-12) and 18.10.2005 (Annexure P-4) are hereby quashed. July 17, 2009 (Mahesh Grover) rekha Judge