Punjab-Haryana High Court
Anoop vs State Of Haryana on 12 March, 2013
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRR No.2379 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Revision No. 2379 of 2012(O&M)
Date of Decision: March 12, 2013.
Anoop
...... PETITIONER(s)
Versus
State of Haryana
...... RESPONDENT (s)
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. Divjyot Singh Sandhu,
Advocate, for the petitioner.
*****
RAM CHAND GUPTA, J.(Oral)
The present revision petition has been filed against order dated 03.05.2012 passed by learned Sessions Judge, Gurgaon vide which the application filed by prosecution under Section 319 Cr.P.C. summoning the petitioner as an additional accused to face trial alongwith the accused already facing trial in FIR no.126 dated 27.05.2011, under Sections 302/307/323/ 452/506 IPC read with Sections 34/201 IPC as also Section 25 of the Arms Act, 1959, was allowed and the present petitioner was ordered to be summoned as an additional accused for commission of offences under Sections 302/307 IPC read with Section 34 IPC for murder of Satish and assault on Puneet.
CRR No.2379 of 2012 -2-
I have heard learned counsel for the petitioner and have gone through the whole record including the impugned order passed by learned Sessions Judge, Gurgaon.
Briefly stated, as per case of the prosecution, accused Durgesh accompanied by his wife Bharti and her brother Anoop -present petitioner had trespassed into the house of Satish (since deceased) in order to commit murder of Satish and his son Puneet. Firearm was used. Injuries were caused to Satish, his son-Puneet and his wife Smt. Shakuntla (mother of Puneet and wife of deceased -Satish). There are also allegations that weapon of offence used in the crime was later on destroyed. After completion of investigation, report under Section 173 Cr.P.C. was filed against co-accused, Durgesh only whereas, petitioner-accused Anoop was placed in column no.2. Charge was framed against accused -Durgesh for commission of offences punishable under Sections 302/307/323 IPC read with Section 34 IPC as well as Sections 506 and 201 IPC. Two witnesses, namely, Puneet Yadav and Smt. Shakuntla
-both injured, were examined thereafter, an application under Section 319 Cr.P.C. was moved on behalf of the prosecution for impleadment of present petitioner which was allowed by learned trial court vide impugned order and petitioner was summoned to face trial alongwith the accused already facing trial for commission of offences under Section 302/307 IPC read with Section 34 IPC.
It has been contended by learned counsel for the petitioner that though his name was mentioned in the FIR and he was also arrested in this case and remained in custody for about three months and however, during CRR No.2379 of 2012 -3- investigation, he was found innocent and hence, he was got discharged. It is contended that it came during inquiry that he was not present at the time of occurrence and that at that time he was present at some other place. It is further contended that moreover only allegation against petitioner-accused is that he caught hold of the deceased whereas his brother-in-law caused firearm injury. It is further contended that he has been implicated in this case falsely as there was tendency on the part of victim to involve all the members of family. It is further contended that, in fact, there was some property dispute between real brothers i.e. Durgesh and Satish and hence, there was no motive for petitioner to commit the crime. It is also contended that earlier as well, an application under Section 319 Cr.P.C. was filed by the prosecution after examination of PW1 -Puneet Yadav and however, the said application was dismissed. It is further contended that after examination of another witness the present application was filed, which has been allowed. He has also placed reliance upon Sarabjit Singh and another v. State of Punjab and another, 2009(16) SCC 46 and Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75 and contended that a person should only be summoned as an additional accused if court finds that evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. It is also contended that the power under Section 319 Cr.P.C. is an extraordinary one and same should be exercised sparingly.
So far as the dismissal of earlier application filed by the prosecution under Section 319 Cr.P.C. is concerned, perusal of order passed CRR No.2379 of 2012 -4- by this Court, Annexure P3 shows that it was observed that the application was dismissed being premature as other eye-witness was yet to be examined. Hence, there is no bar in filing the second application after examination of another eye-witness.
Law on the point has been settled by Hon'ble Apex Court in Suman v. State of Rajasthan and others, 2009(4) RCR (Criminal) 908 wherein it has been observed that merely because a person sought to be summoned was dropped by the investigating agency in report under Section 173 Cr.P.C., cannot be said to be a bar for filing application under Section 319 Cr.P.C. if the prosecution has been able to show prima facie case against the person sought to be summoned and the court is empowered to summon him as an additional accused. Relevant paragraphs read as under:-
"15. In view of the settled legal position as above, we hold that a person who is named in the first information report 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 under Section 319 Cr.P.C. 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. As a corollary, we hold that the process issued against the appellant under Section 319 Cr.P.C. 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.
xx xx xx xx xx CRR No.2379 of 2012 -5-
17. In the light of the above, we shall now consider whether the learned Judicial Magistrate was justified in taking cognizance against the appellant under Section 498-A IPC or the satisfaction recorded by him for issuing process against the appellant under Section 319 Cr.P.C. is vitiated by any legal infirmity and the learned Sessions Judge and High Court committed an error by refusing to quash the order passed by him. In the complaint filed by her, respondent No.2 alleged that after one week of the marriage, her mother-in-law - Rukmani Devi and nanad - Suman (the appellant herein) told her that in the marriage, items like scooter, fridge, air-conditioner etc. have not been given and the marriage party was not served well; that mother-in-law - Rukmani Devi and nanad -Suman forcibly took the complainant to a lady doctor and got implanted Copper-T so that she may not give birth to any child; that nanad - Suman started instigating the husband of the complainant either on phone or otherwise and thereupon, he not only used to assault, but also humiliate and torture the complainant; that on 7.4.2002 the husband gave beating with the belan and nanad - Suman snatched her hair and forcibly removed the rings. In her statement made before the police under Section 161 Cr.P.C., respondent No.2 reiterated all the allegations. The father and mother of respondent No.2 and 4 other persons, whose statements were recorded under Section 161 Cr.P.C., clearly spelt out the role played by the appellant in harassing respondent No.2 and instigating her 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 for dowry or harass respondent No.2 because she was living with her husband, Mahendra Pal at Bikaner. In her statement recorded under Section 164 Cr.P.C., respondent No.2 again made specific allegations against the appellant. While deciding the application filed under Section 319 Cr.P.C., the CRR No.2379 of 2012 -6- learned Judicial Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani Devi and sister-in-law, Suman had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in-law had instigated her husband to inflict physical torture, which were supported by the statements recorded by the police under Section 161 Cr.P.C. The learned Judicial Magistrate further noted that in her statement under Section 164 Cr.P.C., the complainant has clearly spelt out the role played by the appellant in the matter of demand of dowry, physical and mental harassment and the fact that the complainant had made a specific mention about this in the letters written to her parents and opined that prima facie case was made out for issuing process against the appellant. Therefore, it must be held that the learned Judicial Magistrate had objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C. for taking cognizance against the appellant. Although at one stage, the learned Sessions Judge allowed the revision filed by the appellant and declared that in view of the bar of limitation contained in Section 468 Cr.P.C., the learned Judicial 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 learned 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. Therefore, it is not possible to agree with the learned senior counsel for the appellant that issue of summons against the appellant amounts to abuse of the process of the Court.
18. In the impugned order, the High Court has broadly referred to the factual matrix of the case and held that the orders passed CRR No.2379 of 2012 -7- by the learned Judicial Magistrate and Sessions Judge do not suffer from any illegality or perversity warranting interference under Section 482 Cr.P.C. The approach adopted by the High Court is in consonance with the law laid down by this Court in State of Haryana v. Bhajan Lal (1992) Suppl.(1) SCC 335, C.B.I. v. Ravi Shankar Srivastava (2006) 7 SCC 188, R. Kalyani v. Janak C. Mehta (2009) 1 SCC 516 and Mahesh Choudhary v. State of Rajasthan (2009) 4 SCC 439."
In this case, name of petitioner was mentioned in the FIR, which was promptly lodged by none else than by one of the injured witnesses. Another injured witness has also supported his version. Petitioner was also arrested by the police on 29.06.2011 and even remand was also sought. During the course of investigation, he also suffered disclosure statement admitting his presence and also the role attributed to him in the occurrence. However, thereafter investigating agency came to the conclusion that he was not involved in the occurrence by accepting his plea of alibi. However, both the injured eye-witnesses have supported prosecution version before learned trial court and hence, the impugned order was passed summoning petitioner as an additional accused in this case to face trial alongwith the accused already facing trial. Both the parties are also closely related. There was a property dispute hence, there was motive for petitioner-accused to commit the crime.
It is settled principle of law that in its revisional jurisdiction, this Court is not to re-appreciate and reappraise the evidence until and unless, it comes to the conclusion that the findings recorded by the trial Court are CRR No.2379 of 2012 -8- perverse, illegal and erroneous on account of misreading of evidence.
In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Sessions Judge, Gurgaon in passing the impugned order, warranting interference by this Court in its revisional jurisdiction.
Hence, the present revision petition is, hereby, dismissed being devoid of any merit.
However, it is made clear that nothing observed herein shall be having any bearing on the decision of this case on merit by the trial Court.
( RAM CHAND GUPTA ) March 12, 2013. JUDGE 'om'