Satnam Kaur vs State of Haryana

Harmohinder Kaur Sandhu, J.

Bhagwan Dass complainant performed the marriage of his daughter Jasbir Kaur alias Raj Bala with Gurbachan Singh son of Himmat Singh a resident of village Nasirpur in the year 1987, according to Hindu rites. Raj Bala gave birth to two sons, the elder being 2 years old and at the time of occurrence the younger son was 5 months old. Husband and mother in law of Jasbir Kaur were not satisfied with the dowry given to her and at the time of the birth of the second son she was compelled to bring a pair of gold ear rings and Rs. 1000/ in cash from her parents. Her parents were not in a position to fulfill their demands so she was not properly treated. On 19.8.1990 at about 7 p.m. Jasbir Kaur set herself ablaze by sprinkling kerosene oil and died. On these allegations Bhagwan Dass father of the deceased lodged a report against Gurbachan Singh and his mother Satnam Kaur under Sections 304B, 306 and 498A of the Indian Penal Code, at Police Station Sadar, Ambala.

Investigation in the case was conducted and challan was presented in court against Gurbachan Singh accused alone. Additional Superintendent of Police, who verified the investigation, found that Satnam Kaur lived separately from her son and she was not present at the time of the occurrence, so her name was shown in column No. 2 of the report under Section 173 of the Code of Criminal Procedure (for Short the Code). After the case was committed and it was pending for framing of charge, Bhagwan Dass father of the deceased moved an application for summoning Satnam Kaur so that she may stand trial alongwith her son Gurbachan Singh. The application was opposed by Gurbachan Singh but after hearing the learned Public Prosecutor and counsel for the parties, the Additional Sessions Judge, Ambala allowed the application and summoned Satnam Kaur to stand trial "Aggrieved by this order dated 4.9.1991 Satnam Kaur filed the present Revision Petition.

I have heard the counsel for the parties.

The main contention of the learned counsel for the petitioner is that the provisions of Sections 227 and 228 of the Code did not apply to the case of the petitioner, as she was not an accused at that stage and if the Court wanted to summon the petitioner as an accused, then under Section 319 of the Code it was obliged to record the evidence of any witness and without recording any evidence no order regarding summoning the petitioner could be passed. In support of his contention the learned counsel placed reliance on the case of Mahant Amar Nath v. State of Haryana, AIR 1983 SC 288.

The learned Deputy Advocate General, Haryana on the other hand contended that for summoning a person shown in column No. 2 of the report under Section 173 of the Code no evidence is required to be recorded and the court could summon him after perusing the report under Section 173 of the Code and documents attached to the challan, it was contended that under Section 227 of the Code, the court has not only the power but also a duty to embark on an enquiry by carefully perusing the documents coming before it and to search out from the record as to whether any persons other than those before the court, prima facie appears to be in any way involved in the crime and should be tried alongwith the accused.

I find that the controversy involved in the same has been settled in Lal Chand Satish Kumar v. State of Haryana, 1983(2) RCR 587 by a Division Bench Authority of this court. The only question for decision referred to the Bench was whether the court of Sessions without itself recording evidence could summon a person to stand trial (alongwith others committed to it by a Magistrate) on the basis of the documents in the final report of the Investigating Officer under Section 173 of the Code and it was held :

"A court of Session, without itself recording evidence, can summon and additional accused to stand trial along with others already committed to it on the basis of the documents in the final report of the Investigating Officer under Section 173 in view of the provisions of Sections 227 and 228 of the Code".

There is also a Full Bench decision of the Rajasthan High Court reported as Dalip Singh and others v. State of Rajasthan, 1989(2) RCR 23. It was observed in this case as under :

"Section 319(1) is to be pressed into service upon the prima facie satisfaction of the court and if the court is satisfied that there is material to proceed under Section 319(1) then there is no necessity for postponing action under that Section till some statement is recorded. Cases aren''t rare where at the initial stage after taking cognizance of the case, Court may think it necessary to summon a person in the dock and proceed against him under this section. For example if the names of certain persons appears in the dying declaration of the victims of in the statement under Section 164 and the Court has to wait till the statements of the witnesses relating to such documents or evidence being recorded in the court, it would be not only wasting the time of the court and delay in the trial, but may also prejudice the interest of either party. In such a case waiting for some statement in the court would frustrate the very purpose of the enactment of this section".

It was further held in this very case that :

`The Legislature while enacting Section 319(1) has used the term `evidence'' only and not the evidence recorded in the court, the meaning of the word should be understood in its generic sense. Courts should read an interpret the section as it is. No canon of construction permits the court to interpret a section in such manner as to render it to some extent otiese. The power is meant to check the unbridled power of the Investigating agency in determining the guilt or innocence of the suspects."

These two authorities are applicable to the facts of the present case. The deceased had made a dying declaration before her death which was recorded by Additional Chief Judicial Magistrate and in that dying declaration she had also levelled allegations of culpability against her mother in law i.e. the present petitioner. So far as the case of Mahant Amar Nath (Supra) is concerned the question involved therein for decision was not whether a Sessions Judge could summon a person mentioned in Column No. 2 of the report under Section 173 of the Code without recording evidence but the question was whether some persons who had not been challaned could be summoned on the basis of statement of an eye witness recorded in court who gave sufficient details about the participation of those persons, when those details were missing in his statement recorded under Section 161 of Code and it was held that those persons could be summoned and the order was not illegal. In the instant case the Additional Sessions Judge after perusing the documents and the dying declaration found that prima facie case was made out against Satnam Kaur and the question as to what weight was to be given to the dying declaration was to be adjudicated only at the trial. The impugned order is thus quite legal and proper and there being no infirmity on the same, the petition is dismissed. Trial Court be informed.