Ashok Kumar and Another vs State of Haryana and Another

Gurdev Singh, J.—Petitioners have come up with the present petition u/s 482 of the Code of Criminal Procedure(hereinafter referred to as "the Code") invoking the inherent jurisdiction of this Court for quashing orders dated 9.10.2007, passed by Chief Judicial Magistrate, Sirsa (Annexure P-2) and dated 27.1.2010 passed by Additional Sessions Judge, Sirsa (Annexure P-3).

The facts, in brief, are that the son of the present petitioners, Subhash Chander, was married to Nikita, complainant, on 14.12.2004, but no issue was born out of that wedlock. The complainant moved an application u/s 156(3) of the Code before Chief Judicial Magistrate, Sirsa. She contended therein that her parents had spent a lot of money beyond their capacity on her marriage and different articles, as detailed in that application, were entrusted to her husband and his parents. They used to tease her with common intention for having brought less dowry and had been harassing her on that ground. They had been pressurizing her to bring more dowry from her parents and on the asking of the parents her husband used to beat her after consuming liquor. She was turned out of matrimonial home and was pressurized to bring Rs. 50,000/ from her parents who could hardly arrange for Rs. 20,000/-and was rehabilitated in the matrimonial home. She was kept well for 10-15 days and thereafter, she was beaten by all the accused in the month of April, 2005, and was turned out of the house with a threat that, if she would not bring the balance amount, she would not be settled in their house. That application was sent to the Officer In Charge of the Police Station, who registered the FIR. However, during the investigation the present petitioners were found to be innocent and only their son, Subhash Chander was challaned for the offences under Sections 406, 498A and 506 IPC. During the trial, the prosecution examined the complainant as PW-1. An application was filed u/s 319 of the Code, which was allowed by Chief Judicial Magistrate vide the aforesaid order and both the petitioners were ordered to be summoned as additional accused to stand their trial along with Subhash Chander for the offences punishable under Sections 406, 498A and 506 read with Section 34 IPC. The petitioners preferred revision before the Sessions Judge, which was entrusted to Additional Sessions Judge, Sirsa. However, the same was dismissed vide the aforesaid order.

I have heard learned Counsel for the petitioners.

It has been submitted by learned Counsel for the petitioners that no fresh evidence has been produced before the trial court and the complainant only reiterated the facts stated by her in the application filed u/s 156(3) of the Code. Summoning order could not be passed on the basis of that evidence as the petitioners had already been found to be innocent by the Investigating Agency in spite of that evidence. He has placed reliance on Lal Suraj @ Suraj Singh and Anr. v. State of jharkhand 2009(1) RCR (Criminal)504.

In the said judgment, the FIR was recorded on the statement of one Bihari Singh, in which Jogendra Singh and Karu Singh were cited as witnesses. During the investigation, they were found to be innocent and no charge sheet was filed against them. After the above witnesses were examined in the trial court as PW-6 and PW-7, respectively, an application was filed u/s 319 of the Code and on the basis of that evidence they were ordered to be summoned as additional accused. A revision was preferred before the trial court, which was dismissed. The following observations were made by Hon''ble High Court:

If the satisfaction of the investigating officer or supervising officer is to be treated as determinative, the very purpose of Section 319 of the Code would be frustrated. Though it cannot always be the satisfaction of the investigating officer which is to prevail, yet in the instant case the High Court has not found the evidence of PW1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the Code it was required to be analysed. The conclusion that the IO''s satisfaction should be given primacy is unsustainable.

It was held by the Apex Court that no exception can be taken to the said dicta.

The appeal was allowed and the summoning order was set aside after it was found that PW-6, Jogendra Singh, who deposed about the occurrence, was not the eye witness to the same and Karu Singh, PW-7, who also deposed about this occurrence, was only a hearsay witness.

Counsel for the petitioner has drawn the attention of this Court towards the following last lines of para 15 of the judgment " In a case where, however, the court exercises its jurisdiction u/s 319 of the Code; the power has to be exercised on the basis of the fresh evidence brought before the Court. There lies a fine but clear distinction." He tried to interpret these lines so as to mean that the evidence produced before the trial court should be the evidence, which is over and above the evidence collected by the Investigating agency on the basis of which the innocence of the accused has been recorded. That is the mis-interpretation by the counsel for the petitioners. In that eventuality, Section 319 of the Code will become a negatory provision.

However, it is well settled that the power u/s 319 of the Code is to be exercised very sparingly and with caution after the Court is satisfied that some offence has been committed by the person who has not been arrayed as an accused and that conviction of such person can be based on the evidence produced before it.

Coming to the facts of the present case, it has been specifically stated by the complainant-PW-1, before the trial court that different articles of dowry were given to the present petitioners and after the marriage, they had been teasing her on the ground that less dowry had been given and that her husband-Subhash Chander, used to beat her at their instance. She also stated that a sum of Rs. 20,000/-was given by her parents in respect of the demand of Rs. 50,000/-, made by the accused and even then the accused, including the petitioners, had been beating her and ultimately turned out her from their house to bring balance amount of Rs. 30,000/-. The conviction of the petitioners can certainly be recorded on this statement of the complainant. From her statement, it appears that they committed offence under Sections 406 and 498A IPC, for which they are liable to be tried along with Subhash Chander, accused. No ground is made out for quashing the above said orders.

Petition is dismissed accordingly.