Manpreet Kaur and Another vs State of Punjab

Daya Chaudhary, J.

Crl. Misc. No. 20379 of 2010

Application is allowed as prayed for.

Crl. Revn. No. 1129 of 2010

The present revision petition has been filed against order dated 23.2.2010 passed by Additional Sessions Judge (Adhoc) Fast Track Court, Gurdaspur, vide which an application u/s 319 Cr.P.C. for summoning the petitioners as an additional accused has been allowed.

Briefly, the facts of the case are that FIR No. 207 dated 12.12.2007 was registered under Sections 302, 401 and 34 IPC by complainant-Avtar Singh against the petitioners as well as Gurdeep Singh and Malkiat Singh, Sub Inspector, Punjab Police. As per the allegations in the FIR, the petitioners and other co-accused killed the son of the complainant in connivance with each other. As per case of the complainant, deceased-Tejinder Singh left his home on 23.7.2007 at about 8.00 pm and in this regard a complaint was registered on 28.7.2007. The present FIR was registered on 12.12.2007 after recovering of the dead body of Tejinder Singh. The matter was investigated by the police and accused-Gurdeep Singh, the father of petitioner No. 1 was arrested and challan was presented against him only. On 27.3.2009, an application u/s 319 Cr.P.C. was moved by the complainant through Additional APP for summoning of the petitioners and Malkiat Singh, co-accused, which was allowed on 23.2.2010.

The present revision petition has been filed to challenge order dated 23.2.2010, vide which, an application u/s 319 Cr.P.C. for summoning the petitioners as an additional accused has been allowed.

Learned Counsel for the petitioners submits that the impugned order has been passed by learned trial Court without application of judicial mind. Firstly the investigation was conducted by the police and final report was presented to DIG Police Border Ranger, Amritsar, wherein, it was clearly mentioned that from October, 2006, there was no link between deceased and petitioner No. 1 and her family members. Learned Counsel further argued that the trial Court while allowing the application has relied upon a CD of telephonic conversation between Malkiat Singh and Tejinder Singh (deceased), whereas, that conversation does not infer that the petitioners were involved in the alleged offence.

I have heard the arguments advanced by learned Counsel for the petitioners and have also gone through the impugned order.

The case of the complainant from the very beginning was that there was a threat given by Sub Inspector Malkiat Singh through telephone and that telephonic conversation was recorded in the CD. Even the telephone number has been given. As per statement of complainant-Avtar Singh, Malkiat Singh, Sub Inspector used to give threat even prior to death of Tejinder Singh. A complaint was filed on 14.9.2007 in which Kuldeep Kaur and Harpreet Kaur were named for suspecting for the death of Tejinder Singh. Now, on the basis of evidence, which is in the form of CD, supported by the statement of the complainant, which was not available at the time of investigation before the police, the trial Court has allowed the application filed by the complainant for summoning the petitioners as additional accused.

There is limited scope of interference in the revision petition as the Court must satisfy itself about the existence of an extra ordinary situation. No doubt the powers are with the Court but for summoning a person u/s 319 Cr.P.C., the case is to be made by the complainant by adducing additional evidence which has not been done in the present case. 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 by Delhi High Court in Savitri Devi v. Ramesh Chand and Ors. 2003 (3) RCR (Criminal) 823 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 v. State of Punjab and Ors. 2002 (2) RCR (Crl.) 695 (SC) 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 and Ors. v. State of Punjab and Ors. 2003 (2) RCR (Crl.) 335 (P & H) while relying upon the judgment in the case of Michael Machado and Anr. v. Central Bureau of Investigation and Anr. 2000 (2) RCR (Crl.) 75 (SC) 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.

Although Section 319 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 must be regarded and considered as incidental and ancillary to the main 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 name of the person who has not been named as an accused in the FIR and has surfaced 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.

Keeping in view the facts mentioned above, no inference is required in the impugned order and present revision petition being devoid of any merit is hereby dismissed.