Punjab-Haryana High Court
Om Parkash vs Birender @ Billu And Others on 31 January, 2013
Author: Sabina
Bench: Sabina
CRMM No.23668 of 2011 -1-
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc.No. 23668 of 2011 (O&M)
Date of decision: 31.1.2013
Om Parkash
......Petitioner
Versus
Birender @ Billu and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. S.S. Khurana, Advocate for the petitioner.
Mr. R.D. Yadav, Advocate for respondent Nos. 1 to 4.
Mr. Satyavir Singh Yadav, Addl. A.G., Haryana.
****
SABINA, J.
The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure 1973, (Cr.P.C. for short), for quashing of the impugned orders dated 19.04.2011 and 13.07.2010, whereby the application filed by the prosecution under Section 319 Cr.P.C. for summoning respondents No.1 to 4 was dismissed by the learned Courts below.
Learned counsel for the petitioner has submitted that he may be permitted to withdraw the petition against respondent Nos.2 to 4. Accordingly, this petition is dismissed as withdrawn against respondent Nos.2 to 4.
Learned counsel for the petitioner has further submitted that so far as respondent No.1 Birender @ Billu is concerned, CRMM No.23668 of 2011 -2- specific role was attributed to him. As per FIR, respondent No.1 has given iron rod blow on the left elbow of the injured-complainant-Om Parkash. However, at the time of presentation of challan, the name of respondent No.1 was kept in column No.2. During trial, prosecution had moved an application for summoning respondent No.1 as an additional accused under Section 319 Cr.P.C. The trial Court had erred in dismissing the said application vide impugned order dated 13.07.2010. Similarly, the Court of revision has also erred in dismissing the revision petition vide impugned order dated 19.04.2011.
Learned counsel for respondent No.1 on the other hand has opposed the petition. He has submitted that in fact during investigation it was found that the said respondent was not present at the spot. Respondent No.1 has been falsely involved in this case as he was a govt. servant.
Learned State counsel has supported the case of the petitioner.
After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed against respondent No.1.
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 CRMM No.23668 of 2011 -3- 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, (2010) 1 Supreme Court Cases 250 as under:-
CRMM No.23668 of 2011 -4-
"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, 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 CRMM No.23668 of 2011 -5- 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 Cr.P.C. 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 investigations 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 CRMM No.23668 of 2011 -6- 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 Cr.P.C., 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 Cr.P.C. 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 CRMM No.23668 of 2011 -7- 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."
FIR in question has been registered on the basis of the statement of Om Parkash-injured. The complainant stated that on 18.04.2009 at about 8.00 p.m., he was attacked by the accused when he had reached near the house of respondent No.1. Respondent No.1 gave an iron rod blow on the left elbow of the complainant whereas accused-Ravinder, who was armed with an axe, gave a blow with it on his head. The other accused also inflicted injuries on the person of the complainant.
A perusal of the copy of medico legal report (photocopy of the same has been placed on record during the course of arguments) reveals that injury No.5 relates to swelling on the left forearm and the injured was advised to undergo X-ray examination qua the said injury. The said injury has been opined to have been caused with a blunt weapon.
Although in the present case, respondent No.1 was declared innocent during investigation but injury No.5 has been attributed to the said respondent by the complainant. The medical evidence also supports the version of the complainant.
Thus, there was sufficient material before the trial Court to proceed against respondent No.1. Both the Courts below have erred in dismissing the application moved by the prosecution under Section CRMM No.23668 of 2011 -8- 319 Cr.P.C. so far as it relates to summoning of respondent No.1 as an additional accused to face the trial.
Accordingly, this petition is allowed. The impugned orders are set aside, so far as they relate to dismissal of the application moved by the prosecution under Section 319 Cr.P.C. qua respondent No.1. Accordingly, the application moved by the prosecution under section 319 Cr.P.C. is partly allowed. Let respondent No.1 be summoned to face trial as an additional accused along with the accused, who are facing the trial.
(SABINA) JUDGE January 31, 2013 sarita