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The Indian Penal Code
Section 319 in The Indian Penal Code
Surinder vs State Of Haryana on 3 May, 1994
K.T. Palanisamy vs State Of Tamil Nadu on 11 January, 2008
Shri Kishan vs State Of Haryana on 12 February, 1993

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Punjab-Haryana High Court
Satish Kumar And Ors. vs State Of Punjab And Anr. on 20 February, 2008
Author: R Bindal
Bench: R Bindal



JUDGMENT
 

 Rajesh Bindal, J.  

1. The challenge in the present petition is to the order dated October 9, 2006 passed by the learned Judicial Magistrate Ist Class, Patiala whereby the petitioners were directed to be summoned as accused in an application filed by the prosecution under Section 319 of the Code of Criminal Procedure (for short "the Code").

2. Briefly the facts, as stated in the petition, are that FIR No. 212 dated June 1, 2003 was lodged by Sunita Rani wife of Suresh Kumar against her husband Suresh Kumar son of Ved Parkash, Rachna daughter of Neelam wife of Satish Kumar i.e. wife of brother of husband of complainant, Champa Bai wife of Krishna, sister-in-law of the complainant, Mehar Chand alias Pepeyya brother-in-law, Kamla wife of Mehar Chand sister-inlaw (nanad) and Mewa Devi wife of Ved Parkash mother-in-law under Sections 406, 498-A IPC. After investigation challan was presented only against Suresh Kumar husband of the complainant and Mewa Devi motherin- law of the complainant on December 09, 2003. The charges were framed on August 17, 2004. During investigation sufficient material was not found against the other accused named in the FIR and accordingly no challan was presented against them and their names were put in column No. March 24, 2006, the statement of the complainant namely Sunita Rani was recorded wherein while improving her earlier statement besides naming two persons namely petitioners No. 3 and 4, she levelled allegations against petitioners No. 1 and 2, which were not there when the FIR was got registered. In her statement the complainant submitted that all of them had tortured her physically and mentally. They also demanded dowry. Believing the statement as such, the learned Magistrate summoned the petitioners vide order dated October 09, 2006. It is this order passed by the learned Magistrate, which is impugned before this Court.

3. Learned Counsel for the petitioners submitted that material before the Court was not sufficient to opine and record satisfaction justifying summoning of the petitioners especially keeping in view the fact that complainant in her examination-in-chief before the Court had improved her earlier statement and there was no corroborating evidence available on record. He further submitted that even in the complaint there are no allegations regarding demand of dowry. All what has been stated is that she was being harassed by her husband, who is an alcoholic type of person. Further it was alleged in the complaint that Suresh Kumar, her husband had solemnized second marriage with Rachna Devi on May 11, 2003. The marriage between the complainant and Suresh Kumar were solemnized in 1997. Present FIR was got registered on June 1, 2003. In statement before the Court recorded on March 24, 2006, the complainant had categorically admitted that about 2-1/2 years back, police had taken her to her in-laws' house where she had identified her dowry articles, which were taken into possession by the police and a Fard Ex. P3 was prepared. He further submitted that allegations against Rachna Devi as well as statement of complainant is falsified from the mere fact that complainant had left the matrimonial home somewhere in December, 2001 whereas Rachna Devi was married with the brother of husband of complainant in May, 2003.

4. On the other hand, Learned Counsel for the respondents submitted that no material which is not already on record before the Court below can be considered in exercise of revisional jurisdiction under Section 401 of the Code. Mere fact that the complainant had not levelled allegations against all the family members shows her bonafide that she had complained only against the real accused. Further submission is that mere fact that other accused named in the FIR have been put in column No. 2 does not mean that they have been exonerated. Before the Court sufficient material was there and the petitioners were rightly summoned to stand trial.

5. This Court in Criminal Misc. No. 11407-M of 2007 ( Ashok Kumar v. State of Haryana ) decided on February 15, 2007, while considering number of judgments of Hon'ble the Supreme Court and this Court in Rukhsana Khatoon (Smt.) v. Sakhawat Hussain and Ors. , Krishnappa v. State of Karnataka , Kailash Dwivedi v. State of M.P. and Anr. (2005) 11 Supreme Court Cases 182, Palanisamy Gounder and Anr. v. State reprsented by Inspector of Police (2005) 12 Supreme Court Cases 327, Kavuluri Vivekananda Reddy and Anr. v. State of A.P. And Anr. (2005) 12 Supreme Court Cases 432, Lok Ram v. Nihal Singh 2006 (2) RCR (Criminal) 707, Popular Muthiah v. State represented by Inspector of Police (2006) 7 Supreme Court Cases 296, Mohd. Shafi v. Mohd. Rafiq and Anr. 2007 (2) RCR (Criminal) 762, Rajendra Singh v. State of U.P. and Anr. 2007 (3) R.C.R. (Criminal) 1021, Municipal Corpn. of Delhi v. Ram Kishan Rohtagi 1983 (1) RCR (Criminal) 73, Joginder Singh v. State of Punjab (1979) 1 SCC 345, Kishan Singh v. State of Bihar 1993 (1) RCR (Criminal) 647, Guriya @ Tabassum Tauquir and Ors. v. State of Bihar and Anr. 2007 (4) Recent Criminal Cases 518, Y. Saraba Reddy v. Puthur Rami Reddy and Anr. (2007) 4 Supreme Court cases 773, Smt. Rani v. State of Haryana 2006 (1) R.C.R. (Criminal) 985, Surinder Kumar Changli v. State of Punjab 2006 (2) R.C.R. (Criminal) 359, Surjit Kaur and Ors. v. State of Punjab and Anr. 2006 (1) RCR (Criminal) 565, Rajbir Singh v. State of Haryana and Ors. 2006 (3) RCR (Criminal) 195, Manoj Kumar v. Prabhu Ram 2003 (4) RCR (Criminal) 887, Isham Singh and Ors. v. State of Haryana 2004 (2) RCR (Criminal) 279, Bharat Bhushan alias Sonu v. State of Haryana and Anr. 2005 (1) RCR (Criminal) 976, Surinder Kumar v. State of Punjab Changli 2006 (2) RCR (Criminal) 359, Smt. Rajjo and Anr. v. State of Haryana and Anr. 2006 (3) RCR (Criminal) 635, Om Parkash and Ors. v. State of Haryana 2007 (1) RCR (Criminal) 632, Ram Karan alias Roda and Anr. v. State of Haryana 2007 (1) RCR (Criminal) 977, Ganesha v. State of Haryana and Anr. 2007 (2) RCR (Criminal) 633 and Hukam Chand and anotehr v. State of Haryana 2007 (3) RCR 141 has summed up the broad principles, as to under what circumstances power under Section 319 of the Code should be exercised, which are in the following terms:

i) Power to summon an accused is discretionary and extra-ordinary power, which should be exercised sparingly and only if compelling reasons exist at any stage of case.

ii) The order passed under Section 319 of the Code of Criminal Procedure summoning an additional accused should not be a mechanical exercise. Court should record reasonable satisfaction and reasons in support of the order.

iii) Power cannot be exercised to conduct a fishing enquiry.

iv) There should be reasonable prospects of the case against the newly added accused ending in their conviction.

v) Step to summon an accused can be taken only on the basis of evidence adduced before the Court and not on the basis of materials available in the charge-sheet or the case-diary as such material does not constitute evidence.

vi) Power can be exercised suo-moto or on an application by some one including accused already before the Court.

vii) An accused is not entitled to be heard before the Court exercises power under Section 319 of the Code of Criminal Procedure.

viii) Satisfaction of the Court is paramount before summoning an accused, which can be arrived at inter- alia upon completion of cross-examination of the witness.

ix) Mere statement of the complainant without there being any other evidence on record may not be sufficient to summon the accused. Each case on this aspect needs cautious examination on facts before passing order of summoning of additional accused.

x) Each case has to be considered on its own facts as there may be different stages of the case where the Court can reach to a conclusion that a prima facie case is made out against the accused sought to be summoned.

6. If the facts of the present case are examined on the principles of law laid down on the issue, it can safely be held that material before the Court was not sufficient to record satisfaction that the prayer made by the prosecution for summoning the petitioners could be accepted especially keeping in view the fact that even the complainant had improved her earlier statement before the police while lodging the FIR. The impugned order passed is totally non speaking and lacking reasons. Petitioner No. 4 joined family after marriage with petitioner No. 1 in May, 2003 whereas the complainant had already left the house in December, 2001. Petitioner No. 3, who is sister-in-law of the complainant is living separately at Rampura Phool. Same is the case of other petitioners. Mere statement of the complainant recorded in the Court could not be relied upon to summon the petitioners in the facts and circumstances of the present case at this stage. The exercise of power by the Court below in the present case under Section 319 of the Code runs totally contrary to the law laid down on the subject. The Courts have to be cautious in summoning the additional accused especially in the matrimonial cases where sometime the tendency is to involve all the family members who may or may not be directly involved or connected with the offence. There is no bar for summoning even a distant relation or even a person, who is living separately, if prima facie offence is made out against him. However, in the present case sufficient material is not there to record satisfaction regarding prima facie case against the petitioners.

7. Accordingly, for the reasons mentioned above, the impugned order dated October 9, 2006 passed by the learned Judicial Magistrate Ist Class, Patiala is set aside. However, the same shall not debar the prosecution from filing application under Section 319 of the Code at any subsequent stage of the proceedings in case any further material comes on record justifying the summoning of the additional accused.

8. The revision petition is disposed of in the above terms.