Crl.Rev.No. 214 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 214 of 2010 (O&M) Date of decision: 3.2.2010 Dariya Singh and another ......Petitioners Versus State of Haryana .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.A.Sheoran, Advocate, for the petitioners. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure (“Cr.P.C” for short) challenging the order dated 4.1.2010 passed by the Additional Sessions Judge III, Bhiwani, whereby the petitioners were summoned on the application filed by the State under Section 319 Cr.P.C. in case FIR No.230 dated 9.9.2008 registered at Police Station Tosham District Bhiwani under Section 302 of the Indian Penal Code. The case of the prosecution, as per FIR reproduced in para 2 of the grounds of petition, reads as under:- “I am agriculturist, we are two brothers and two sisters, Crl.Rev.No. 214 of 2010 (O&M) 2 Sohan Lal is elder and then Roshni and I am youngest and most of youngest Krishna who is my sister, we all are married, my sister Roshni was married about 19 years prior with Sunil son of Indraj, caste Jat r/o Dhani Miran. Elder son born to my sister is Om Parkash aged about 16 years and younger than him his daughter Neelam is about 12 years and younger to all of them daughter Renu is aged about 9 years. My brother-in-law (Jeeja) Sunil Kumar is a drunkard for last many years and due to habit of drinking, he sold his agriculture land approximately 5-6 acres of land, that the Sunil Kumar used to make demand of money for drinking liquor and she usually refused to give the same. Then he beaten to my sister today on dated 9.9.2008, I was at the house in village Dhand near about 6/7 O' clock in the morning, Shri Amar Singh Sarpanch of my village came to my house and told that my nephew Bhagat Singh called on telephone from village Dhani Miran and he said that the girl Roshni of your village has been expired. On this I, Amar Singh Sarpanch and my father Hardwari and my uncle Net Ram and Dalip Singh son of Chet Ram and along with other 3- 4 persons of my village reached at village Dhani Miran in Dhani of my sister Roshni. I asked to my niece (sister's daughter) Neelam who is stying in 7th Class then my niece Crl.Rev.No. 214 of 2010 (O&M) 3 (sister's daughter) Neelam told that yesterday on dated 8.9.2008 in the evening at late night when I, my sister and my mother Roshni had eaten the food at about 10.00 O'clock, my father Sunil and my real uncle (Tau) Dariya and Rajesh who live with my father, who has also bought our agriculture land and all came and started to beat my mother. On that I and my sister Renu were weeping with noising, then Sunil Kumar, Dariya Singh and Rajesh had slept to us and confined us inside the room. My mother still weeping and we were weeping inside the room because the door was closed from out side. In the morning, when I saw the doors were opened, I and my sister saw to my mother who has been dead in the cotton field which I had listen the statement of my niece (sister's daughter). I and other persons of my village went to near the dead body of my sister then we saw that several plants of cotton (Narma) were in broken condition. There was no rope mark on the neck of my sister. The mark of injury was there on the upper and lower side of lips and minor blood was seen on the teeth. The shirt was also torn below the lower part of shoulder. The sewing of the shirt was also slightly torn from side. I have full confidence that murder of my sister Roshni has been done by Sunil Kumar, Dariya and Rajesh, which was done Crl.Rev.No. 214 of 2010 (O&M) 4 by putting rope on the neck of Roshni. Now I and Amar Singh Sarpanch of my village were going to give information of this murder to Police Station that you met us on the way. Legal action be taken against these three persons.” During investigation, the petitioners were found innocent, however, they have been summoned to face the trial under Section 319 Cr.P.C. by the trial Court. Hence, the present revision petition. Learned counsel for the petitioners has submitted that there was no material available before the trial Court to summon the petitioners under Section 319 Cr.P.C. After hearing learned counsel for the petitioners, I am of 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 Crl.Rev.No. 214 of 2010 (O&M) 5 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 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. Crl.Rev.No. 214 of 2010 (O&M) 6 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 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 Crl.Rev.No. 214 of 2010 (O&M) 7 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 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 earlier an application was moved by Crl.Rev.No. 214 of 2010 (O&M) 8 the prosecution under Section 319 Cr.P.C. to summon the petitioners as additional accused. However, the said application was dismissed by the trial Court vide order dated 28.2.2009. The said order was set aside in Criminal Revision No.974 of 2009, moved by the complainant, vide order dated 16.11.2009 (Annexure P-3) and it was held as under:- “ I have heard learned counsel for the parties and perused the record annexed with the petition. During the course of arguments, both the counsel agreed that the matter be remanded back to the trial Court for a decision afresh. A perusal of the impugned order shows that the trial Court has discussed statement under Section 161 Cr.P.C. as well as other material on record. However, there is no discussion at length with regard to the statement made by PW-1 Neelam before the trial Court. It declined to summon respondents No.2 and 3 to face trial on the ground that after thorough investigation, police has come to the conclusion that Dariya and Rajesh had no role to play in the commission of crime. Keeping in view the facts and circumstances of the case, particularly the fact that statement made by Neelam, daughter of the deceased, has not been dealt with in detail by the trial Court, the impugned order is set Crl.Rev.No. 214 of 2010 (O&M) 9 aside. It would, thus, be appropriate to remand the case back to the trial Court to re-adjudicate the matter in the light of the judgment in Michael Machado's case (supra) and come to a conclusion that satisfy the standards laid down therein. The matter is remanded back to the trial Court for a decision afresh. The parties will be at liberty to raise all their pleas before the said Court including the judgments, which they may place reliance upon. The impugned order is, thus, set-aside. Revision petition is allowed in the aforesaid terms.” Thereafter, the impugned order has been passed by the trial Court. A perusal of the same reveals that the trial Court, after taking into account the material evidence on record, has ordered that the petitioners were liable to be summoned to face the trial as accused. Specific allegations have been levelled against the petitioners. PW-6 Renu has deposed that at about 10.00 p.m. she along with her sister PW-1 Neelam and mother Roshni was sitting in her house. Sunil Kumar, Dariya and Rajesh came there after taking liquor and started beating Roshni. They also gave beatings to Renu and Neelam and confined them in a room. In the morning it was found that Roshni had died. The complainant had lodged the FIR on the basis of facts disclosed to him by Neelam. Neelam has also been examined as PW-1 and has supported the prosecution Crl.Rev.No. 214 of 2010 (O&M) 10 case. In these circumstances, there was enough material during trial before the trial Court to order the summoning of the petitioners as additional accused. Hence, no ground for interference is made out. Dismissed. SABINA) JUDGE February 03, 2010 anita