Punjab-Haryana High Court
Sanjay Kumar And Others vs State Of Punjab on 20 August, 2013
Author: Sabina
Bench: Sabina
Crl. Misc. No. M-3976 of 2010 (O&M) -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-3976 of 2010 (O&M)
Date of Decision: 20.8.2013.
Sanjay Kumar and others ........Petitioners
Vs.
State of Punjab ......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. M.K.Dogra, Advocate
for the petitioners.
Ms. Harsimrat Rai, DAG, Punjab.
.....
SABINA, J.
Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) challenging the order dated 19.10.2009 (Annexure P-5) whereby petitioners were ordered to be summoned as additional accused under Section 319 Cr.P.C. and order dated 4.12.2009 (Annexure P-6) whereby revision petition filed by the petitioners was dismissed.
I have heard the learned counsel for the petitioner and the learned State counsel and have gone through the record available on the file carefully.
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 Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-3976 of 2010 (O&M) -2 - 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 Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-3976 of 2010 (O&M) -3 - to proceed against him.
It has been held by the Apex Court in case Suman Vs. State of Rajasthan and another, (2010) 1 Supreme Court Cases 250 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 under Section 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, Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-3976 of 2010 (O&M) -4 - can be proceeded against under Section 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 under Section 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 under Section 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 under Section 161 CrPC and by the Magistrate under Section 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 Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-3976 of 2010 (O&M) -5 - 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 under Section 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 under Section 482 CrPC. The approach adopted by the High Court is in consonance with the Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-3976 of 2010 (O&M) -6 - 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 under Section 498-A IPC."
Facts of the present case are peculiar. In the present case, FIR No. 71 dated 17.7.1997 under Section 408, 420 of the Indian Penal Code, Police Station 'B' Division, Amritsar was got registered by Pritam Singh complainant against Amolak Ram with regard to theft of the articles from his premises. As per the complainant, Amolak Ram was employed as a manager with the complainant. Amolak Ram had committed theft of articles lying in the store of the complainant. The matter was duly investigated and challan was presented against accused Amolak Ram. So far as petitioners Sanjay Kumar and Hari Om are concerned, they were neither named in the FIR as accused nor they were kept in column No. 2 at the time of presentation of challan. During trial an application was moved by the prosecution for summoning petitioners as well as Fuljit Kumar as additional accused under Section 319 Cr.P.C. The said application was allowed by the Trial Court vide order dated 1.12.2007. Petitioners challenged the Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-3976 of 2010 (O&M) -7 - said order by way of revision and vide order dated 11.2.2009 (Annexure P-4), the said petition was allowed and the Trial Court was directed to pass a fresh order, in accordance with law after completion of cross-examination of the complainant-PW-6. Thereafter, the Trial Court passed the impugned order dated 19.10.2009 (Annexure P-5) and allowed the application moved by the prosecution under Section 319 Cr.P.C. The Trial Court held that a perusal of the file revealed that Amolak Ram as Manager of the cold store, owned by the complainant, had embezzled articles worth ` 7-8 lacs and had sold the same to different persons. In an inquiry conducted by Inspector Joda Singh, it was found that Amolak Ram, son of Amolak Ram as well as his son-in-law Harjit Kumar were also involved in the commission of offence. Pritam Singh, while appearing in the witness box as PW-6, had also deposed that Amolak Singh had embezzled/misappropriated the articles in connivance with the petitioners. Assistant Sub Inspector Bakhtawar Singh had also found during inquiry that petitioners had also participated in the crime. Hence, the petitioners were ordered to be summoned to face the trial as additional accused.
The said order was upheld by the Court of Revision vide impugned order dated 4.12.2009 (Annexure P-9). It was further noticed by the Court of Revision that at the time when the earlier revision petition was allowed vide order dated 11.2.2009, it had not been brought to the notice of the said Court that Amolak Ram had died on 12.12.008 and PW-6 could not be cross-examined. Now the complainant has also died. Complainant had also stated in his statement that Amolak Ram Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-3976 of 2010 (O&M) -8 - had committed the crime in connivance with the petitioners. Vide order dated 11.2.2009, the matter was remanded back to the Trial Court for a fresh decision because it was pointed out at that time that cross-examination of PW-6 was not conducted.
Assistant Sub Inspector Bakhtawar Singh has proved his inquiry report while appearing in the witness box as PW-5. As per the said inquiry report, petitioners were found to have participated in the crime along with Amolak Ram. In the facts and circumstances of the present case, both the Courts below rightly came to the conclusion that there was sufficient material available on record to summon the petitioners to face the trial as additional accused.
No ground for interference is made out.
Dismissed.
(SABINA) JUDGE August 20, 2013 Gurpreet Singh Gurpreet 2013.08.26 16:59 I attest to the accuracy and integrity of this document chandigarh