Surinder Singh vs State of Haryana and Others

Sabina, J.—Petitioner has filed this petition u/s 401 of the Code of Criminal Procedure, 1973 (''Cr.P.C.'' for short) challenging the order dated 11.2.2013 passed by the Trial Court whereby application moved by the prosecution u/s 319 Cr.P.C. to summon respondents No. 2 and 3 as additional accused was dismissed. Learned counsel for the petitioner has submitted that specific allegations have been levelled against respondents No. 2 and 3 in the FIR. However, challan was not presented against the said respondents. During trial, petitioner had appeared in the witness box and had deposed as per the contents of the FIR. The Trial Court had erred in dismissing the application moved by the prosecution u/s 319 Cr.P.C. to summon respondents No. 2 and 3 as additional accused.

Learned State counsel has failed to controvert the submissions made by the counsel for the petitioner.

None has appeared on behalf of respondents No. 2 and 3 despite service.

Section 319 Cr.P.C. reads 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.

Thus, as per the above provision, the Trial Court may summon any person to face the trial as an accused if there is sufficient material available against the said person during trial to proceed against him.

It has been held by the Apex Court in case Suman Vs. State of Rajasthan and Another, as under:-

A reading of the plain language of Section 319(1) CrPC makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of Section 319(1) CrPC from which it can be inferred that a person who is named in the FIR or complaint but against whom charge sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the court finds that such person has committed any offence for which he could be tried together with the other accused.

The process issued against the appellant u/s 319 CrPC cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her. A person who is named in the FIR or complaint with the allegation that he/she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against u/s 319 CrPC if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused.

The Magistrate had objectively considered the entire matter and judiciously exercised discretion u/s 319 CrPC for taking cognizance against the appellant. The issue of summons against the appellant was not an abuse of the process of the court. While deciding the application filed u/s 319 CrPC, the Magistrate noticed the allegations made by respondent No. 2 in the complaint that her mother-in-law and sister-in-law had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated the complainant''s husband to inflict physical torture upon her, which were supported by the statements recorded by the police u/s 161 CrPC and by the Magistrate u/s 164 CrPC. In her complaint Respondent No. 2 alleged that after one week of the marriage, her mother-in-law and sister-in-law (the appellant) told her that in the marriage, items like scooter, fridge, air conditioner, etc. were not given and the marriage party was not served well and that on the instigations of the mother-in-law and the appellant sister-in-law, the husband gave beating with the belan, and the appellant forcibly removed the rings.

The complainant clearly spelt out the role played by the appellant and made a specific mention about this in the letters written to her parents and the Magistrate opined that a prima facie case was made out for issuing process against the appellant. The father and mother of respondent No. 2 and four other persons, whose statements were recorded u/s 161 CrPC, clearly spelt out the role played by the appellant in harassing Respondent No. 2 and instigating the complainant''s husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand of dowry or harass Respondent No. 2 because the appellant was living with her husband. Therefore, the trial of the appellant should proceed and should be decided expeditiously

The High Court broadly referred to the factual matrix of the case and held that the orders passed by the Magistrate and Sessions Judge did not suffer from any illegality or perversity warranting interference u/s 482 CrPC. The approach adopted by the High Court is in consonance with the settled law.

Although at one stage, the Sessions Judge allowed the revision filed by the appellant and declared that in view of the bar of limitation contained in Section 468 CrPC, the Magistrate could not have taken cognizance against the appellant, the said order was set aside by the High Court and the matter was remitted for fresh disposal of the revision petition. In the post remand order passed by him, the Sessions Judge independently examined the entire record and held that prima facie case was made out for initiating proceedings against the appellant herein u/s 498-A IPC.

In the present case, prosecution story, in brief, is that Sonia had got married to Mahender on 11.11.2009. On the same day, Suman sister of Sonia, got married to respondent No. 3. However, Suman had not joined her husband in the matrimonial home. Sufficient dowry had been given by the parents of Sonia and Suman at the time of their marriages. However, after marriage, Sonia was harassed by her in-laws on account of insufficiency of dowry. After about six months of her marriage, respondent No. 2 Mithu (father-in-law) raised a demand of Rs. 5,000/- from Sonia. The said fact was disclosed by Sonia to her brother Kuldeep. The said amount was given by Kuldeep to respondent No. 2. About 15 days prior to the occurrence, Mohinder Singh had asked Sonia to bring a fridge and the said demand was also fulfilled by the complainant party. About 10 days prior to the occurrence, complainant received a phone call from his sister that her in-laws family was demanding Rs. 20,000/-. However, the said demand could not be fulfilled by the complainant. On 24.6.2012, at about 1.30 P.M., complainant received a phone call from his brother-in-law Mahender Singh that Sonia had been taken to the hospital as she was having pain in her stomach. During treatment Sonia died due to consumption of poison.

Petitioner, while appearing in the witness box as PW-2, has deposed as per the contents of the FIR. While appearing in the witness box, petitioner has also averred that Rajesh-respondent No. 3 had also been harassing and giving beatings to Sonia along with other co-accused while raising demand of Rs. 20,000/-.

Thus, in the present case, there was sufficient material available on record to summon respondent No. 2 as additional accused. Specific allegations have been levelled against him in the FIR that he had demanded Rs. 5,000/- from Sonia about six months prior to the occurrence and the said demand had been met by PW-5 Kuldeep. Thereafter, accused had again raised a demand of Rs. 20,000/- before the occurrence and the same could not be met by the complainant party. However, no specific allegation has been levelled against respondent No. 3-Rajesh in the FIR. Although, petitioner, while appearing in the witness box, has stated that respondent No. 3 along with other accused had given beatings to his sister but no such mention was made in the FIR. In these circumstances, the learned Trial Court had rightly ordered the dismissal of the application u/s 319 Cr.P.C. so far as summoning of respondent No. 3 as an additional accused, is concerned. However, the Trial Court had erred in dismissing the application moved by the prosecution u/s 319 Cr.P.C. so far as it relates to the summoning of respondent No. 2-Mithu as additional accused as there was sufficient material on record to summon the said respondent to face the trial as an additional accused. Accordingly, this petition is partly allowed. The impugned order dated 11.2.2013 passed by the Trial Court whereby the application was dismissed qua respondent No. 2, is set aside. Consequently, the application moved by the prosecution u/s 319 Cr.P.C. is allowed qua respondent No. 2. Let the said respondent be summoned to face the trial as an additional accused by the Trial Court.