Punjab-Haryana High Court
Gurpreet Kaur vs State Of Haryana And Another on 1 November, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRR No.3433 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRR No. 3433 of 2012 (O&M)
Date of Decision: November 01, 2012
Gurpreet Kaur
... Petitioner
Versus
State of Haryana and another
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. S.S. Momi, Advocate,
for the petitioner.
Paramjeet Singh, J.
Challenge in the present criminal revision is to the order dated 04.10.2012 (Annexure P/1) passed by learned Additional Sessions Judge, Kurukshetra, whereby application of the petitioner under Section 319 Cr.P.C. for summoning respondent no.2 as additional accused in case FIR No. 35 dated 02.02.2011, under Sections 498-A and 307 read with Section 34 IPC, registered at Police Station Sadar Thanesar, has been declined.
Brief facts of the prosecution case are that the petitioner was married with Amarjit Singh as per Hindu Rites & Ceremony on CRR No.3433 of 2012 2 13.02.2009. After 2-3 months of the marriage, Amarjit Singh, husband of the petitioner and Gurmit Kaur mother-in-law of the petitioner started demanding motor cycle and money in cash. Thereafter, father of the petitioner gave Rs.50,000/- for motorcycle and requested not to harass and humiliate the petitioner. But, Amarjit Singh and Gurmit Kaur demanded further Rs.2 lacs and said that if the said amount was not given, they would not keep and maintain the petitioner. Thereafter, a complaint was made by the petitioner against her husband, mother-in-law, father-in-law and brother-in-law Saravjit (respondent No.2). With the intervention of panchayat, in-laws of the petitioner agreed to keep the petitioner. On 01.02.2011 at about 11.30 p.m., husband of the petitioner told the father of the petitioner telephonically that the petitioner had set herself on fire. As a result of it, an FIR was registered against Amarjit Singh (husband of the petitioner), Gurmit Kaur (mother-in-law), Darshan Singh (father-in-law) and Saravjit (brother-in-law) on the complaint of Nirmal Singh (father of the petitioner).
The police after investigation presented challan against other accused, however, during investigation, the police found that Darshan Singh and Saravjit Singh (respondent no.2) were innocent.
After framing of charge, the complainant Nirmal Singh was examined as PW12 and the petitioner was examined as PW15, who categorically stated that on 01.02.2011 at about 9.00 AM, when she was coming back to her room after preparing milk for her child, her husband, mother-in-law and Saravjit Singh, brother-in-law were standing in corridor CRR No.3433 of 2012 3 with intention to kill her and further said that the brother-in-law and mother-in-law caught hold her from arms, thereafter, her husband poured kerosene oil and set her on fire and this testimony was corroborated by her father Nirmal Singh (PW12). After recording of the statements of the aforesaid prosecution witnesses, an application was moved by the petitioner for summoning respondent no.2 under Section 319 Cr.P.C. The learned Additional Sessions Judge has dismissed the said application vide order dated 04.10.2012.
Hence, this criminal revision.
Learned counsel for the petitioner vehemently contended that there are categoric statements of PW12 and PW15 under Section 161 Cr.P.C. In the statement of the petitioner, she specifically named the accused persons and said that her husband Amarjit Singh, brother-in-law Saravjit Singh and mother-in-law Gurmit Kaur in connivance with each other with intention to kill her poured kerosene upon her and further specifically stated that respondent no.2 Saravjit Singh and mother-in-law Gurmit Kaur caught hold her from arms and her husband poured kerosene oil on her and set her on fire.
I have considered the rival contentions of the learned counsel for the petitioner and perused the record.
The learned trial Court, after appreciating the evidence, has observed as under:-
"6. That complaint was filed by Nirmal Singh and father of victim and FIR was lodged and thereafter, CRR No.3433 of 2012 4 statement under section 161 Cr.P.C. of Gurpreet Kaur was recorded. Though, there is allegation leveled by Gurpreet Kaur that on 01.02.2011 in the morning when she had boiled milk for her child and was going towards her room then in the courtyard her husband Amarjeet Singh, her brother-in-law Saravjeet Singh and mother-
in-law Gurmeet Kaur came over there with intention to kill her and she was caught from her arms by Saravjeet Singh and Gurmeet Kaur and her husband sprinkled kerosene on her and set her on fire. However, in the affidavit Ex.P13 she has also deposed that under pressure of the accused persons she made statement to the Magistrate in the hospital exonerating all the accused. When Gurpeet Kaur appeared in the witness box as PW13, she has admitted that on 03.02.2011 when her statement was recorded by the Magistrate, at that time only Magistrate and doctor were present and she has also admitted that before 8.8.2011 the family members of the accused persons had assured her and her family members that they would keep her nicely and surgery would be got done for this and after that assurance she moved an affidavit before the court for giving concession of bail to her mother-in-law Gurmeet Kaur and her husband Amarjeet Singh, So, when this CRR No.3433 of 2012 5 witness has already exonerated Saravjeet Singh before magistrate, then Court is of the opinion that Saravjeet Singh cannot be summoned as an additional accused."
It would be appropriate to reproduce Section 319 of the Code, which reads as under :
319. 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."
The extent of the power of the Court to summon persons other CRR No.3433 of 2012 6 than the accused to stand trial in a pending case has been considered by the Hon'ble Apex Court in case of Ram Singh and others vs. Ram Niwas and another, 2009(3) RCR (Criminal) 501. In the said case, various authorities of the Hon'ble Apex Court have been considered with reference to extent of power under Section 319 Cr.P.C. The relevant part from the above said judgment is extracted below:
"12. Indisputably, the court must satisfy itself about the existence of an extraordinary situation enabling it to exercise an extraordinary jurisdiction. It is true that the court is not denuded of its power to exercise the said jurisdiction only because a person named as an accused in the FIR was not charge-sheeted as a result whereof no cognizance has been taken against him. What is necessary for the said purpose is that the person concerned was not being tried as an accused before the Court at that stage.
13. This Court in the case of Kailash v. State of Rajasthan, 2008(2) RCR(Criminal) 200 : 2008(2) RAJ 323 : [2008(3) SCALE 338], has held that a glance of the provision would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. This Court has laid emphasis on the words, 'it appears from the evidence', 'any person', and 'has committed any offence'. It was further held that the power under Section 319 has to be essentially exercised only on the basis of the evidence brought on record of the case. The discretionary jurisdiction could, therefore, be exercised only after the legal evidence comes on CRR No.3433 of 2012 7 record and from that evidence it appears that the concerned person has committed an offence.
14. In the case of Raj Kishore Prasad v. State of Bihar & Anr., 1996(2) RCR(Criminal) 804 : [(1996)4 SCC 495], this Court opined :
"14.Learned counsel differ however on the other question posed in Kishun Singh case [Kishun Singh v. State of Bihar, 1993(1) RCR(Criminal) 647 : (1993)2 SCC 16]. It was whether a Court of Session, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision ? The answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the Court of Session unfettered jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It is on this reasoning that this Court sustained the order of the Court of Session CRR No.3433 of 2012 8 (though it ostensibly was under Section 319 CrPC terming material of investigation before it as 'evidence') summoning the unnamed accused to stand trial with the named accused. A stage has thus been discovered, before the reaching of the stage for exercise of power under Section 319 CrPC, on the supposition and premise that it is pre-trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Sections 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228 the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused if a prima facie case is made out from the material available on the record."
15. In the case of Rakesh & Anr. v. State of Haryana, 2001(3) RCR(Criminal) 681 : [(2001)6 SCC 248], it was held :
"11. In support of his contention, learned Senior Counsel Mr. Ranjit Kumar referred to the decision of this Court in Joginder Singh v. State of Punjab, (1979) 1 SCC 345. In our view, this decision nowhere lays down that before a person is added as accused in a sessions trial case, he CRR No.3433 of 2012 9 should be permitted to cross-examine the witnesses whose evidence is recorded. On the contrary, it lays down that once the Sessions Court is seized of the matter as a result of the committal order against some accused the power under Section 319(1) can come into play and the court can add any person, not an accused before it, as an accused and direct him to be tried along with other accused. The Court has further observed that the very purpose of enacting Section 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court are included in the expression 'any person not being the accused'."
16. We must, however, at this stage also place on record that this Court, in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., 1983(1) RCR (Criminal) 73 : [(1983)1 SCC 1], opined that the power under the said provision must be exercised very sparingly and not as a matter of course. In the case of Joginder Singh & Anr. v. State of Punjab & Anr.
[(1979) 1 SCC 345], this Court even opined that such a power can be exercised even without there being a committal order passed against a person. [see also Lok Ram v. Nihal Singh & Anr., 2006(2) RCR(Criminal) 707 : 2006(2) Apex Criminal 71 : [(2006)10 SCC 192]; Shashikant Singh v. Tarkeshwar Singh & Anr., 2002(3) RCR(Criminal) 191 : [(2002)5 SCC 738]; Michael Machado & Anr. v. Central Bureau of Investigation & CRR No.3433 of 2012 10 Anr., 2000(2) RCR(Criminal) 75 : [(2000)3 SCC 262]; Palanisamy Gounder & Anr. v. State represented by Inspector of Police, 2006(2) RCR(Criminal) 235 : 2006 (2) Apex Criminal 244 : [(2005)12 SCC 327]; Kailash Dwivedi v. State of M.P. & Anr. [(2005)11 SCC 182] and Mohd. Shafi v. Mohd. Rafiq & Anr., 2007(2) RCR (Criminal) 762 : 2007(2) RAJ 534 : [2007(5) SCALE 611].
After considering the various judgments, the Hon'ble Apex Court in Ram Singh's case (supra) held as under:-
17. The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word 'appears'. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case.
18. The High Court furthermore committed a serious error insofar as it failed to take into consideration that when the order dated 29th May 2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly."CRR No.3433 of 2012 11
In the present case also, in my opinion, learned Additional Sessions Judge has rightly recorded a finding reproduced in the earlier part of this order, that when the petitioner has already exonerated respondent no.2 before Magistrate, then respondent no.2 cannot be summoned as an additional accused.
Learned counsel for the petitioner has failed to point out any illegality or perversity in the impugned order.
In view of the above, I am not inclined to interfere in the order of the learned Trial Court.
Dismissed in limine.
November 01, 2012 [Paramjeet Singh] vkd Judge