Inder Singh vs State of Haryana and Others

Sabina, J.—This petition has been filed u/s 401 of the Code of Criminal Procedure 1973, (Cr.P.C. for short), challenging the order dated

31.8.2012, whereby the application moved by the prosecution u/s 319 Cr.P.C. for summoning respondent Nos. 2 to 5 as additional accused was

dismissed. Learned counsel for the petitioner has not pressed the petition qua respondent Nos. 2, 3 and 5. Consequently, this petition qua

respondent Nos. 2, 3 and 5 is dismissed as not pressed.

Learned counsel for the petitioner has further submitted that so far as respondent No. 4 Dinesh is concerned, the complainant had specifically

stated before the police that respondent No. 4 Dinesh was armed with an iron rod at the time of occurrence and had given a blow with the same

on the head of his wife. The complainant as well as injured Santosh, while appearing in the witness box, have deposed with regard to the fact that

respondent No. 4 Dinesh had given an iron rod blow on the head of Santosh. The said injury was duly corroborated by the medical evidence. The

trial Court had erred in dismissing the application moved by the prosecution for summoning respondent No. 4 Dinesh as an additional accused

because there was sufficient material on record to proceed against respondent No. 4 Dinesh as an additional accused.

Learned counsel for respondent No. 4, on the other hand, has opposed the petition. Learned counsel for respondent No. 4 has submitted that

respondent No. 4 Dinesh was rightly found innocent during investigation. Further no new material had come on record during trial, which would

necessary to invoke the provisions u/s 319, Cr.P.C.

After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be partly allowed. 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 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.

It has been held by the Apex Court in case Suman Vs. State of Rajasthan and Another, Supreme Court Cases 250 : (AIR 2010 SC 518) 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 PC 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 u/s 319, Cr. P.C. 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 u/s 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 u/s 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 u/s 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 u/s 161, Cr. P.C. and by the Magistrate u/s

164, Cr. P.C. 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 u/s 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 u/s 482, Cr. P.C. 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, 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 u/s

498A, IPC.

In the present case, a perusal of the FIR reveals that complainant Inder Singh has specifically stated that respondent No. 4 was armed with an

iron rod at the time of occurrence and had given a blow with the same on the head of his wife Santosh. The complainant, while appearing in the

witness box as PW-2, has deposed with regard to the said fact. Injured Santosh, while appearing in the witness box as PW-1, has also

categorically deposed that Dinesh had given her an iron rod blow on her head. The statements of the complainant as well as injured Santosh in this

regard are duly corroborated by the medical evidence.

In these circumstances, the trial Court erred in dismissing the application moved by the prosecution u/s 319, Cr.P.C. with regard to summoning

of respondent No. 4 Dinesh to face the trial as an additional accused. In fact, there was sufficient material before the trial Court to summon

respondent No. 4 Dinesh to face the trial as an additional accused. Accordingly, this petition is partly allowed. The impugned order dated

31.8.2012 is modified to the extent that the application moved by the prosecution u/s 319, Cr.P.C. is partly allowed and respondent No. 4 Dinesh

be summoned to face the trial as an additional accused.