Suman Ashok Kumar vs State of Punjab

Nirmaljit Kaur, J.—This is a revision petition u/s 401 Cr. P.C. for setting aside the order dated 18.08.2010 passed by the Additional Sessions Judge, Roopnagar, whereby, the petitioner has been summoned to face trial while exercising power u/s 319 Cr. P.C. in case F.I.R. No. 92 dated 27.10.2009 u/s 304-B registered at Police Station Noorpur Bedi, District Rupnagar. While praying for setting aside the said Order, Learned Counsel for the petitioner submitted that the investigation in the present case was carried out by the Investigating Agency and the petitioner was found innocent. She was placed in column No. 2. The challan was presented only against Roshan Lal-husband, Kanshi Ram father-in-law and Jeeto Devi mother-in-law. Thereafter, on the basis of the statement made by PW-1 Baljit Singh-complainant, the petitioner has been summoned u/s 319 of the Cr. P.C. While summoning the petitioner, the Additional Sessions Judge, Rupnagar has not recorded any satisfaction that the evidence was sufficient to convict the accused and it is further contended that there is no other evidence against the petitioner except the statement of PW-1, which is a repetition of the F.I.R.

Reliance has been placed on the judgments of Hon''ble the Apex Court rendered in the cases titled as Sarabjit Singh and Another Vs. State of Punjab and Another, Lal Suraj @ Suraj Singh v. State of Jharkhand reported as 2009 (1) R.C.R. (Criminal) 504 : (AIR 2008 SC (Supp) 1114), and Kailash Vs. State of Rajasthan and Another,

Learned Counsel for the respondent, however, while vehemently opposing the present revision petition submitted that the respondent-complainant had not even named the husband of the petitioner even though he was the brother-in-law, whereas, she has specifically named the present petitioner. Thus, the allegations are not an exaggeration. Further, specific role has been attributed to the petitioner. She has been specifically named in the F.I.R. As such, there was no ground to interfere in the order dated 18.08.2010 passed by the Additional Sessions Judge, Rupnagar, vide which, the petitioner has been summoned u/s 319 of the Cr. P.C.

Heard.

It is not disputed that the only evidence before the Court was the statement of PW-1 Baljeet Singh-complainant. The F.I.R. was also registered on the basis of the said statement. The allegations in the F.I.R. and in the statement are same. The petitioner has already been found innocent on the basis of the allegation in the F.I.R. Thus, there is nothing new before the Court. The petitioner, herein, is the sister-in-law i.e. wife of the elder brother of the husband of complainant''s sister i.e. jethani. The petitioner is similarly situated as the sister of the complainant. Both are daughters-in-law of the same family. As such, the allegation that the petitioner was demanding motor-cycle from the sister of the complainant does not appeal to reason. Even as per the cross examination, it is admitted by the complainant that Ashok Kumar-husband of the petitioner and the complainant''s sister i.e. the deceased were living separately and were having separate ration cards. The said ration cards have been placed on record as Annexures P-2 and P-3.

It is a well settled proposition of law that an order u/s 319 Cr. P.C. should not be passed only because one of the witnesses wish to implicate another person. The Courts are required to apply stringent tests; one of the tests is that the Court should come to the reasonable conclusion on the basis of evidence before it that the same is likely to lead to conviction.

In Michael Machado and Another Vs. Central Bureau of Investigation and Another, considering the basic requirements of Section 319 of the Code Court said:

The basic, requirement for invoicing 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, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertain 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 be tried along with the already arraigned accused.

In Krishnappa Vs. State of Karnataka, the Court ruled that the power to summon an accused is an extraordinary power conferred on the Court and it should be used very sparingly and only if compelling reasons exist for taking cognizance against the person other than the accused.

The Apex Court in the case of Sarabjit Singh and Another Vs. State of Punjab and Another, , observed as under:-

The provision of Section 319 of the Code, on a plain reading provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.

We may notice that in Y. Saraba Reddy Vs. Puthur Rami Reddy and Another, this Court opined:

...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court...

An order u/s 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person (s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction.

For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.

Hon''ble the Supreme Court in Sarabjit Singh and Another Vs. State of Punjab and Another, also held that unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz. (i) an extra ordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied.

Applying the test in the present case, no finding has been recorded by the Court below that the evidence was sufficient to summon the petitioner u/s 319 of the Cr. P.C. and was likely to result in conviction of the petitioner.

this Court in the case of Divya alias Babli and others v. State of Haryana and another reported as 2006 (4) R.C.R. (Cri.) 322, while relying on the judgment of the Apex Court rendered in the case of Kans Raj Vs. State of Punjab and Others, held as under:-

Another judgment rendered in Shinder Pal @ Kakke''s case (supra) relied by Mr. Saini, this Court while relying upon a judgment of Apex Court rendered in Kans Raj Vs. State of Punjab and Others, wherein their Lordships have observed that a tendency has developed for roping in all the relations in dowry cases which ultimately weakens the case of the prosecution even against the real accused.

My view is also fortified by the latest judgment of Hon''ble Supreme Court rendered in Ramesh and Others Vs. State of Tamil Nadu, in which their Lordships while quashing the proceeding against sister-in-law who was staying at a different place observed that there were bald allegations to rope in as many relations of the husband.

Another latest judgment of Apex Court rendered in Sushil Kumar Sharma Vs. Union of India (UOI) and Others, where issue of striking down Section 498-A I.P.C. had sprouted, their Lordships observed that in such type of cases the "action" and not the "section" may be vulnerable and the Court by upholding the provisions of law may still set aside the action, order or decision and grant appropriate relief to the persons aggrieved. Their Lordships while dealing with the dowry menace, however, observed in para 17 as under:-

The object of the provision is prevention of the dowry menace. But as he has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignomny (ignominy?) suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin''s weapon. If cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual "wolf" appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the Courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalised statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the Courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the Courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

As already submitted above, the petitioner is the jethani of the deceased. She was admittedly staying separately. As per the cross-examination, "it is correct that these photographs are pasted on their respective separate ration cards. Ashok Kumar is doing his business at Ludhiana but I do hot know whether he is transporter or not. I do not know if the accused own Max Mohindra 2006 Model Jeep and two trucks."

The petitioner is admittedly living separately along with her husband Ashok Kumar at Ludhiana where her husband is having a separate business of trucks. The petitioner was not in a position to interfere in the matrimonial life of the deceased.

Lately, a tendency has been developed for roping in aft the relations in dowry cases in order to browbeat and pressurize the immediate family of the husband. Accordingly, sometimes inflated and exaggerated allegations are made. In view of the above discussion, the present petition is allowed and the Order dated 18.08.2010 passed by the Additional Sessions Judge, Rupnagar, whereby, the petitioner has been summoned to face trial while exercising power u/s 319 Cr. P.C. in case F.I.R. No. 92 dated 27.10.2009 u/s 304-B registered at Police Station Noorpur Bedi, District Rupnagar is, hereby, set aside.