Mahendra Rinwa @APPELLANT@Hash State of Rajasthan

Petitioner-complainant has preferred this revision petition under Section 397 read with Section 401 Cr.P.C. to assail order dated 21st of November

2017, passed by Addl. Sessions Judge, Jaitaran (Pali) (for short, ‘learned Court below’). By the order impugned, learned Court below has

rejected application of the petitioner under Section 319 Cr.P.C. in Sessions Case No.07/16, arising out of FIR No.492/2015, registered at Police

Station, Jaitaran, District Pali.

The facts, apposite for the purpose of this revision petition, are that petitioner-complainant submitted aforementioned First Information Report against

Omprakash, Ms. Babu Devi and second respondent Teja Ram, inter-alia, alleging therein that they are husband, mother-in-law and brother-in-law of

his daughter Ms. Sushila, who died at matrimonial home on 7th of December 2015 under mysterious circumstances. The FIR further unfurled that

husband, mother-in-law and brother-in-law of deceased Sushila subjected her to cruelty or harassment for or in connection with demand of dowry

soon before her death, and death has occasioned otherwise   than under normal circumstances within seven years of matrimony.  Police

after investigation, chargesheeted husband of Ms. Susila, Omprakash and her mother-inlaw Ms. Babu Devi for offence under Sections 498A and

304-B IPC, while dropping the name of second respondent.  In due course of time, the case was committed to learned Court below and charges

were framed for the aforesaid offences against the accused persons. After recording statements of prosecution witnesses including father, mother

and brother of the deceased, petitioner laid an application under Section 319 Cr.P.C. to proceed against second respondent for the aforesaid offences,

which he appears to have committed and put him to trial together with other accused persons.  The learned Court below, after examining the

evidence and other materials available on record, declined prayer of the petitioner and that prompted him to approach this Court.

I have heard learned counsel for the petitioner, learned Public Prosecutor as well as learned counsel for second respondent and perused the materials

available on record.

While it is true that a Court, at any stage of trial, can exercise power under Section 319 Cr.P.C. to do real justice but then such extraordinary power

conferred on the Court should be used with caution and only if compelling reasons exist for proceeding against a person against whom action has not

been taken.  Law is trite on the subject that power of summoning an additional accused under Section 319 Cr.P.C. should be exercised

sparingly.  There remains no quarrel that second respondent is brother-in-law of the deceased, who is serving Army. Despite his relationship

with the deceased, the evidence which has emerged during trial, more particularly evidence of PW1 Baksha Ram father of the deceased, PW3

Mahendra â€" real brother of the deceased, and PW10 Ms. Jaitu, though prima facie implicating the second respondent for commission of offence, but

in totality, testimony of all these witnesses is not much stronger than showing mere probability of complicity of the second respondent. A cumulative

reading of the statements of these witnesses, in my considered opinion, is falling short of the stringent requirements prescribed under Section 319

Cr.P.C. for summoning the second respondent as an additional accused. Moreover, none of these witnesses has whispered anything about dates

and events when second respondent subjected deceased Ms. Sushila to cruelty or harassment for demand of dowry. While serving Army, it is

rather difficult to comprehend that he remained present at his home on every sundry occasions. Constitution Bench of Supreme Court in Hardeep

Singh Vs. State of Punjab & Ors. (2014 Cr.L.J.1118), while concurring with the power of Court at the time of taking cognizance, i.e., whether a prima

facie case is made out to proceed against the accused, the Court insisted for stricter degree of satisfaction while exercising power under Section 319

Cr.P.C.

The Court held:Â Â

“At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused.  Under Section

319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this

Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or

'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed

an offence for which such person could be tried together with the already arraigned accused persons.â€​

The Court further laid emphasis that such power is not to be exercised in casual and cavalier manner being discretionary and extraordinary. Â

The Court held:Â

“Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the

circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person

may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court

that such power should be exercised and not in a casual and cavalier manner.â€​

While answering the question, pertaining to the nature of satisfaction required to invoke power under Section 319 Cr.P.C. to arraign an accused, the

Court answered the question as under: “Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had

been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under

Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and

a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such

trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trialtherefore the

degree of satisfaction for summoning the accused (original and subsequent) has to be different.â€​

In the instant case, trial is almost on the verge of completion and the learned Court below in exercise of its discretion, has declined to arraign second

respondent as an accused, in my opinion, it has not committed any illegality or impropriety in exercise of its discretionary power while passing the

impugned order.Â

Therefore, viewed from any angle, no interference with the impugned order is warranted and consequently the revision petition fails and same is

hereby dismissed.Â

Accordingly, the stay petition also stands rejected.