Nandni Kumari vs State of Bihar and Another

Sadanand Mukherjee, J.—This is an application for quashing the order dated 17.1.2007 passed by Additional District & Sessions Judge 1st, Munger in Sessions Case No. 53 of 2005 by which the learned trial court has summoned the petitioner for facing trial u/s 319 of the Cr.P.C. In the aforesaid sessions trial case on behalf of the prosecution a petition was filed u/s 319 of the Cr.P.C. for issuing summonses against Nandni Kumari, the petitioner, to face trial alongwith other accused persons. In this case under Sections 498A, 304B, 201 of the I.P.C. and Section 3/4 of the Dowry Prohibition Act, in the F.I.R. lodged against Satish Singh, Sunita Singh and Sadanand Singh, the main allegation is that of demand of dowry and Rs. 2 lacs. There was torture and intimidation to the daughter of the informant, threatening to give Rs. 2 lacs to the son-in-law of the informant or execute sale deed with regard to the house and lands. The daughter of the informant was brutally assaulted by the son-in-law and his mother and father who are also accused in this case and she was taken to Bhagalpur Hospital. The informant rushed to the house of the accused persons but this petitioner, who was alone in the house, refused to say anything. Incidentally the informant rushed to the Bhagalpur Hospital but he could not trace out his daughter.

On the aforesaid written report the case was lodged under Sections 587, 304, 201 of the I.P.C. and also u/s 3/4 of the Dowry Prohibition Act. After submission of charge-sheet and commitment the case was transferred to the Court of Additional District and Sessions Judge, 1st, Munger for trial. The informant in his statement had not made any allegation against the petitioner. The wife of the informant made allegation against mother-in-law, father-in-law, husband and has not even raised any suspicion against the petitioner. During the trial, the wife of the informant, namely, P.W. 1 was examined, where for the first time, the name of the petitioner was introduced.

Similarly the informant was examined as P.W. 3 and he too for the first time named the petitioner in the court. It has been submitted that it is settled law that power to summon an accused is an extraordinary power conferred on the court and should be used very sparingly and only if compelling reason exists for taking cognizance against the other persons. In this case it appears that on submission of the learned Addl. P.P. and on a written petition summon was issued u/s 319 of the Cr.P.C. against the petitioner as this petitioner did not give details of the deceased or accused persons. It has been submitted that she had full knowledge that the deceased at the time succumbed to injury but she concealed this fact only to misguide the informant. It has also been submitted that P.W. 1 Ganga Devi and P.W. 3 Ashok Mandal stated about the involvement of the petitioner in the alleged crime.

It appears from perusal of the copies of depositions of P.W. 1, Ganga Devi that mother-in-law, Sunita Devi, father-in-law, Sadanand Singh and husband Satish Singh and ''Nanad'', Nandni Devi assaulted the deceased Mamta Devi. P.W. 3 has also stated about the assault by this petitioner alongwith other accused persons, as stated above. On the above ground the petitioner was summoned by the court below.

In the counter affidavit filed on behalf of Opposite Party No. 2 it has been submitted that order u/s 319 Cr.P.C. is just and proper. The involvement of the petitioner accused came in the enquiry during the trial and petitioner was summoned in accordance with the provisions of law. It is also submitted on behalf of the informant that Opposite Party No. 2 filed complaint case against all the F.I.R. named accused persons, including this petitioner.

It is submitted on behalf of the informant through counter affidavit that it is wrong to say that for the first time the name of Nandni Kumari was introduced during the trial, rather during investigation also in the F.I.R. and re-statement of the informant the name of the petitioner, Nandni Kumari had occurred. With reference to the evidence of the witnesses it is stated that P.W. 1 Ganga Devi, the mother of the deceased, in course of her evidence and P.W. 3 informant, in course of his evidence had named this petitioner that she alongwith other accused persons were demanding dowry. It is further submitted that in the F.I.R. also it is made clear that Nandni Kumari was present but she did not give details of the deceased, Mamta Devi nor about the accused persons and thus she concealed the fact. It is submitted that when the police refused to register the case, Opposite Party No. 2 filed Complaint Case No. 617(C) of 2004 against all the F.I.R. named accused including Nandni Kumari also, the petitioner of this case, thereon upon the direction of the Superintendent of Police, the Kotwali P.S. registered F.I.R. under Sections 498A, 304B, 201 of the I.P.C. and 3/4 of Dowry Prohibition Act.

In this connection on behalf of both the parties decisions of Hon''ble the Supreme Court and this Court have been cited as reported in Meena Kumari @ Meena Devi Vs. The State of Bihar, 2005(3) PLJR 233 : 2007(1) P.L.J.R. 81 (Raghunath Yadav @ Raghunath Ahir & Anr. vs. State of Bihar), Horil Sao and Others Vs. The State of Bihar and Another , Saiyad Alam and Others Vs. The State of Bihar and Krishnappa Vs. State of Karnataka,

On behalf of the petitioner it is rightiy submitted that the petitioner is not named in the F.I.R. and charge-sheet has also not been submitted against her. She has been summoned in this case on the version of two witnesses. It is well settled that the power u/s 319 Cr.P.C. should be sparingly exercised. The power of the Court is discretionary in nature. The Hon''ble Supreme Court has been pleased to hold that it should be exercised judicially having regard to the various factors including the stage at which the trial has proceeded, the quantum of evidence collected and time consumed by the court in collecting evidence. If by summoning an accused trial is to be proceeded with afresh in respect of such an accused, the learned Magistrate shall have also to assess whether there will be justification for proceeding against such an accused by recommencing the entire trial afresh. In this connection Michael Machado and Another Vs. Central Bureau of Investigation and Another, , Michael Machado and Another Vs. Central Bureau of Investigation and Another, and Michael Machado and Another Vs. Central Bureau of Investigation and Another, have also been found relevant.

Although u/s 319 of the Cr.P.C. the court has unfettered discretionary jurisdiction, the court below shall take into consideration the facts of the case. Under the aforesaid circumstances both parties shall place before the court below the decisions relied upon by them and the court below shall pass an order in accordance with law, considering the fact as stated above and further pass orders according to law and proceed with the case and dispose of the same as early as possible. With the aforesaid observation, this application is disposed of.