Punjab-Haryana High Court
Sarla Devi And Another vs State Of Punjab And Another on 24 October, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Crl. Misc. No. M 37018 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Crl. Misc. No. M 37018 of 2012
Date of decision: 24.10.2013
Sarla Devi and another ........ Petitioners
Versus
State of Punjab and another .......Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. P S Ahluwalia, Advocate
for the petitioners
Mr. Neeraj Sharma, AAG, Punjab
for the respondent - State
Mr. Gurbir Singh Toor, Advocate
for respondent No. 2
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The present petition under Section 482 of the Code of Criminal Procedure (in short, 'the Code') has been directed against orders dated 23.07.2011 (Annexure P4) and 30.07.2012 (Annexure P6), passed by the Chief Judicial Magistrate, Sri Muktsar Sahib and Additional Sessions Judge, Sri Muktsar Sahib, respectively, whereby the petitioners have been summoned to face trial for offence punishable under Sections 406, 498-A of the Indian Penal Code in FIR No. 71 dated 09.04.2010 (Annexure P1), in exercise of power under Section 319 of the Code.
Bimbra Mohan Lal2013.11.08 10:43 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M 37018 of 2012 2
Counsel for the petitioners would contend that the petitioners are the sister and brother-in-law (Jija) of Pawan Garg, husband of complainant Usha Rani (respondent No. 2 herein) and their marriage was performed as back as in the year 1972. The marriage of the complainant with Pawan Garg was performed on 14.05.2008 and at that time Pawan Garg was 63 years old and the complainant was 54 years old. Pawan Garg was a divorcee and has three children (from his first wedlock) residing in U.S.A. Pawan Garg came from USA for the purpose of marriage.
Counsel has submitted that both the petitioners are leading a happy married life at village Dirba Mandi, Tehsil and District Sangrur. It is argued with vehemence that the complainant has admitted during her cross examination that the petitioners were neither present at the time of 'roka' ceremony on 11.05.2008 nor at the time of alleged performance of marriage on 14.05.2008. It is further submitted that the petitioners had nothing to do with the marital affairs of the complainant and Pawan Garg and they have been falsely implicated in the proceedings, being close relatives of Pawan Garg with an intent to wreak vengeance and exert pressure upon Pawan Garg. It is further argued that the statement of the complainant made before trial Court would show that no allegations have been levelled against petitioner Mangat Ram that he was entrusted with any article of istridhan of the complainant or he committed any act of cruelty in connection with demand of dowry to summon him as an additional accused, in exercise of power under Section 319 of the Code. According to counsel, the learned trial Court and the Court in revision failed to appreciate the scope of intervention under Section 319 of the Code when otherwise, in view of principles laid in catena of judgments rendered by Hon'ble the Bimbra Mohan Lal 2013.11.08 10:43 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M 37018 of 2012 3 Supreme Court of India, the trial Court must be satisfied that the evidence brought on record creates reasonable prospect of conviction of the person sought to be summoned as an additional accused.
Counsel for the contesting respondent has supported the orders impugned in the petition with the submissions that in view of testimony of complainant Usha Rani (Annexure P3), the trial Court has rightly held that in case, evidence on record remains unrebutted, it may warrant conviction of the petitioners. It is further argued that after solemnization of marriage of the complainant with Pawan Garg, she was taken to the house of petitioner Sarla Devi at Dirba Mandi, District Sangrur and the complainant along with her husband had been staying at the house of Sarla and cohabited as husband and wife. It is further submitted that jewellary articles belonging to the complainant are in possession of petitioner No. 1-Sarla Devi and the accused refused to return those articles, despite demand raised by the complainant. The complainant was subject to harassment, torture and beatings in connection with demand of dowry by her husband and the petitioners.
In reply, counsel for the petitioners stated that the petition filed by petitioner No.1-Sarla Devi may be dismissed as withdrawn.
Ordered accordingly.
Now the court is left to examine legality and correctness of the orders impugned qua summoning of Mangat Ram, as additional accused under Section 319 of the Code.
A perusal of the statement of the complainant (Annexure P1) would reveal that as per allegations, Rs.2.5 lakhs in cash was paid to Mangat Ram. No date, month, year and the person who gave that amount Bimbra Mohan Lal 2013.11.08 10:43 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M 37018 of 2012 4 to Mangat Ram is stated by the complainant. It is not the plea of the complainant that the said amount of Rs.2.5 lakhs was meant for the complainant or constituted for istridhan. It is also not her plea that she demanded back that amount from Mangat Ram and he refused to return. The statement of the complainant (Annexure P-3) makes it manifest that she has not levelled any allegation against Mangat Ram of mis-appropriating articles of her istridhan. Similarly, there is no specific allegation against him that he subject the complainant to maltreatment much less cruelty in connection with demand of dowry. This apart, Mangat Ram is living in Dirba Mandi in his own house. He was married to petitioner Sarla Devi about 40 years prior to marriage of the complainant with Pawan Garg. Even if it is accepted that Pawan Garg along with complainant stayed in the house of the petitioner after marriage, Mangat Ram cannot be booked for offence under Sections 406/498-A of Indian Penal Code, without there being any material on record, to hold that there is reasonable prospect of his conviction in the light of evidence on record. The revisional Court dismissed the revision by holding that the lower Court has summoned both the revisionists on the basis of a prima facie case. The Court, in exercise of revisional jurisdiction, failed to advert itself to the scope of Section 319 of the Code in the light of various principles culled out in a series of judgments, namely, Municipal Corporation of Delhi v. Ram Kishan Rostagi, 1983 (1) RCR (Criminal) 73, Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Criminal) 75, Sarabjit Singh and another v. State of Punjab and another, 2009(3) RCR (Criminal) 388, Ram Singh and others v. Ram Niwas and another, 2009 (3) RCR (Criminal) 501 and Reeta Nag v. State of West Bengal and Bimbra Mohan Lal 2013.11.08 10:43 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M 37018 of 2012 5 others, 2009(4) RCR (Criminal) 207. A prima facie case is to be seen at the time of framing of charge, but the stage and satisfaction for summoning a person to face trial under Section 319 of the Code is substantially different.
In Sarabjit Singh's case (supra), Hon'ble the Supreme Court of India in para 18 of the judgment held, as quoted thus:-
"18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. 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 extraordinary case and
(ii) a case for sparingly exercise of jurisdiction, would not be satisfied."
Keeping in view the evidence on record when examined in the light of principles laid down in the aforesaid judgments, I have no hesitation to say that the trial Court and the Court in revision committed a grave error Bimbra Mohan Lal 2013.11.08 10:43 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No. M 37018 of 2012 6 and illegality in summoning Mangat Ram as an accused to face trial with the accused already before the Court. In the result, the order passed by the trial Court and affirmed in revision qua summoning of Mangat Ram as an additional accused cannot be allowed to sustain.
In view of the discussion made hereinabove, the petition is partly allowed. The orders impugned are set aside qua summoning petitioner No. 2 - Mangat Ram as an additional accused.
(Rekha Mittal) Judge 24.10.2013 mohan Bimbra Mohan Lal 2013.11.08 10:43 I attest to the accuracy and integrity of this document Chandigarh