Crl. Revision No. 1324 of 2011 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No. 1324 of 2011 (O&M) Date of Decision: 11.8.2011. Ajit Singh .......Petitioner Vs. State of Haryana and another ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vivek Khatri, Advocate for the petitioner. Mr. Amandeep Singh, Asstt. A.G., Haryana for respondent No.1. Mr. Rakesh Nehra, Advocate for respondent No.2. ..... SABINA, J. Petitioner has filed this petition under Section 401 of the Code of Criminal Procedure ('Cr.P.C.' for short) challenging the order dated 20.4.2011, whereby the application, moved by the prosecution under Section 319 Cr.P.C. for summoning the petitioner-Ajit Singh as an additional accused, was allowed. Hence, this petition by the accused. Learned counsel for the petitioner has submitted that the trial court had erred in allowing the application filed by the prosecution under Section 319 Cr.P.C. qua summoning of the petitioner to face the trial as an additional accused as he had been found innocent during investigation. Learned state counsel and counsel for respondent No.2, on the other hand, have submitted that there was sufficient Crl. Revision No. 1324 of 2011 (O&M) -2 - material available during trial to summon the petitioner to face the trial as an additional accused. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be dismissal. Section 319 Cr.P.C. 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 Crl. Revision No. 1324 of 2011 (O&M) -3 - 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.” Thus, as per the above provision, the trial court may summon any person to face the trial as an accused if there is sufficient material available against the said person during trial to proceed against him. 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) Cr.P.C 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) Cr.P.C 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 Cr.P.C cannot be quashed only on the Crl. Revision No. 1324 of 2011 (O&M) -4 - 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 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.” “The Magistrate had objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C 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 Cr.P.C, 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 Cr.P.C and by the Magistrate under Section 164 Cr.P.C. In her complaint Respondent No.2 alleged that after one week of the marriage, her mother-in-law and sister- Crl. Revision No. 1324 of 2011 (O&M) -5 - 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 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 Cr.P.C, 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 Cr.P.C. The approach adopted by the High Court is in consonance with the settled law. Crl. Revision No. 1324 of 2011 (O&M) -6 - 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 Cr.P.C, 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.” In the present case the complainant, while appearing in the witness box, has deposed as under (certified copy of the statement has been placed on record during the course of arguments):- “Stated that on 29.8.2009 at about 8.00 a.m., I was present in my house. All of a sudden Jagdish son of Dharambir armed with a Kasola, Sombir son of Raja armed with a jelli and Raja son of Mohan armed with a lathi and Ram Kumar armed with lathi, Ombir armed with a lathi, Sunil armed with a jelli, Jagbir armed with a Kasola, Ajit armed with a jelli, came there. All of them attacked me with their respective weapons. Sombir inflicted a jelli blow on my left palm, Sunil inflicted a jelli blow on the right armpit, Sombir gave a jelli blow like a lathi on my teeth. I sustained multiple injuries on my right elbow, right thumb and back at the hands of the accused. I raised alarm which attracted my son Crl. Revision No. 1324 of 2011 (O&M) -7 - Kartar, Suresh and my grandson Pardeep. They were present in my Ghair and they came to rescue me from there. On seeing them the accused raised a lalkara that they should not be spared. Then Ajit gave a jelli blow on the left hand of my son Kartar. Ajit gave another blow of jelli on the right shoulder of my grandson Pardeep. The remaining accused also caused injuries with their respective weapons to Pardeep, Kartar and Suresh. In the meanwhile Sombir took out a gun from his house and with an intention to kill us fired a shot from his gun which hit on right palm of my son Suresh. He also fired second shot from his gun, however, due to the intervention of the neighbourers that fire did not hit any one. We also resisted the act of the accused persons with lathies and dandas.” Although the petitioner had been declared innocent during investigation but there was sufficient material available during trial to proceed against the petitioner. The petitioner had allegedly given a jelli blow on the left hand of Kartar and on the right shoulder of Pardeep. In these circumstances, the learned trial court had rightly allowed the application moved by the prosecution under Section 319 Cr.P.C. In these circumstances, no ground for interference by this court is made out. Dismissed. (SABINA) JUDGE August 11, 2011 Gurpreet