Leelu Ram vs State of Haryana

Daya Chaudhary, J.—The present revision petition has been filed to challenge order dated 6.6.2014 passed by learned Additional Sessions Judge, Gurgaon, vide which, an application filed by the petitioner u/s 319 Cr.P.C. for summoning of Reena as an additional accused has been dismissed.

Briefly, the facts of the case are that FIR No. 436 dated 11.10.2013 was registered on the basis of complaint made by Leelu Ram (PW-5), father of the deceased, under Sections 498-A, 302, 304-B and 34 IPC at Police Station Pataudi, District Gurgaon against husband-Amit, father-in-law-Mahabir Yadav, mother-in-law-Maya Devi, brother-in-law-Vipin (devar) and sister-in-law Reena (devrani). The challan was presented against husband, father-in-law, mother-in-law and brother-in-law of the deceased. Sister-in-law-Reena was found innocent in the investigation and was kept in column No. 2 of the challan. Thereafter after recording of statement of complainant-Leelu Ram (PW-5), an application was moved u/s 319 Cr.P.C. for summoning of Reena as an additional accused to face trial along with other co-accused, which was dismissed by learned Additional Sessions Judge vide order dated 6.6.2014, which is subject matter of challenge in the present revision petition.

Learned counsel for the petitioner contends that allegations qua to Reena, who is sought to be summoned as an additional accused, are at par with the allegations against other accused who are facing trial but she was wrongly found innocent by the police. The name of said Reena was specifically mentioned in the FIR along with other accused and a specific role was attributed to her. Not only complainant-Leelu Ram but Kanwar Singh (PW-6) has also stated about involvement of Reena. It has come in the statements of PW-5 and PW-6 that all the accused harassed the deceased for demand of dowry and this fact was conveyed to the complainant on telephone. Learned counsel further contends that the summoning Court has not taken into consideration all these facts while dismissing the application.

Heard the arguments advanced by learned counsel for the petitioner and have also gone through the impugned order as well as other documents available on file.

Admittedly, Reena was found innocent in the investigation conducted by the police and challan was presented only against four accused and she was kept in column No. 2. On perusal of FIR, it is clear that only the name of said Reena has been mentioned and no other allegation has been levelled against her. Nothing has come on record to show that said Reena was involved in the commission of offence. The statement of complainant is merely a reiteration of the allegations mentioned in the FIR. The allegations against the proposed accused have already been investigated by the police and nothing material was found regarding her involvement in the offence. Moreover, Reena is sister-in-law (Devrani) of the deceased and she was married after five years of the marriage of the deceased. The deceased was married to accused-Amit on 12.12.2008 and Reena got married to younger brother of Amit on 4.2.2013 and deceased died on 11.10.2013 i.e. after eight months of marriage of Reena. There is nothing on record to show as to why Reena would harass the deceased for demand of dowry. Moreover, there was no reason to demand dowry being Devrani of the deceased as ultimately she was not to be benefited. Section 319 Cr.P.C. is reproduced 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 in various judgments that there is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband. This view has further been affirmed by Hon''ble the Apex Court in Kans Raj Vs. State of Punjab and Others, that a tendency has developed for roping in all the relations in dowry cases and if it is not discouraged, it is likely to affect case of the prosecution even against the real culprits. This Court in Satish Kumar Vs. State of Punjab while relying upon the judgment in the case of Michael Machado and Another Vs. Central Bureau of Investigation and Another, has observed that quality of evidence before the Court should be of such a type that Court can be hopeful that there is reasonable prospect of newly adduced accused being convicted.

In the present case, no material evidence has come out from the statement of the complainant. The statement of the complainant ipso facto cannot be made basis for summoning of Reena u/s 319 Cr.P.C. It appears that the petitioner has tried to rope all the family members.

Although Section 319 Cr.P.C. empowers the Court to proceed against any person, whose name does not find mention in the FIR for which he could be tried along with other accused. The power u/s 319 Cr.P.C. must be regarded and considered as an incidental and ancillary to the power to take cognizance as part of the normal process in the administration of justice. The Court is not merely required to take note of the fact that the person who has not been named as an accused in the FIR and has suffered during the trial but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons u/s 319 Cr.P.C. entails denovo trial, loose number of witnesses already examined and their re-examination could prejudice the case of the prosecution and trial would also be delayed, the court is to exercise such power with great care and precaution.

The Hon''ble Supreme Court in a judgment reported as Michael Machado''s case (supra) has observed as under:-

The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused.

But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against each other persons.

For summoning u/s 319 Cr.P.C., there has to be some evidence before the Court which would indicate the complicity of the persons who are sought to be summoned or some material should have come on record which may prompt the Court to believe that the persons so accused are likely to be involved, and their conviction is likely to result in the eventuality of their facing the trial, and the onslaught of the evidence to be adduced by the prosecution. The mere statement, ipso facto, cannot form the basis of summoning the persons u/s 319 of the Cr.P.C.

Keeping in view the facts of the present case as well as the law position as discussed above, there is no merit in the contention raised by learned counsel for the petitioner and the petition being devoid of any merit is hereby dismissed.