Wednesday, 30 December 2015

Precaution to be taken by Magistrate while summoning of additional accused as per S 319 of crpc in case of misappropriation of streedhan

What should be the ambit and scope of the provisions of Section 319 of the Code came to be discussed in case Lajpat Rai v. State of Haryana, 2002 (1) RCR 280, wherein in para 2 it was stated as under ;
"12. The above provisions leave no manner of doubt that the pre-requisite for invoking the provisions of Section 319 of the Code is that evidence should disclose the commission of offence by the person who had not been arraigned as an accused for which he should be tried together with other accused. The key to the satisfaction of such a requirement is contained in the words "it appears from the evidence that any person not being an accused has committed an offence". The manifest significance of the word "appears" employed in this section by the Legislature is to cover both the stages envisaged under the provisions of Section 319 of the Code in relation to the person who had not been earlier facing trial as an accused but such person must appear to have committed the offence so that he be tried together with other accused. Though these provisions had vested a discretionary power in the Court but it being a judicial discretion has to be exercised in such a manner which would advance the cause of criminal justice. The Court is duty bound to see that these provisions are not used as a handle by a witness to bring another person in the area of trial without any acceptable basis brought forth in his statement. The Court will definitely come to the rescue of the complainant where on the basis of evidence brought on record, it is clearly made out that the other person named by him had not been sent up to face trial along with other accused unfairly by the prosecution though the other person named on record was also responsible for commission of crime. That being so, it is the paramount duty of the Court that the left over person should be made to face the trial along with other accused so that cause of justice could not be allowed to suffer at the hands of the investigating agency. Therefore, the Court has to be extra cautious while exercising the discretion vested in it and apply the test that prima facie there is sufficient evidence to warrant conviction of the person to be summoned to face trial along with other co-accused."
9. In para 15 of that very judgment, the factors which needed to be looked into for invoking the provision of Section 319 were highlighted and the same are as follows :
(i) the doubt about the involvement of the other accused has no place;
(ii) discretionary power so vested in Cr.P.C. under these provisions should be exercised to advance the cause of criminal justice;
(iii) there is compelling duty on the Court to proceed against other accused;
(iv) the power vested in this section is an extraordinary power which should be used very sparingly."
Punjab-Haryana High Court
Dr. Sant Singh vs State Of Punjab on 27 April, 2002
Equivalent citations: II (2003) DMC 232

Bench: R Kathuria


1 Petitioners seek setting aside of the order dated 18.2.2002 passed by the Chief Judicial Magistrate, Amritsar, whereby petitioners were summoned on an application filed Under Section 319, Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by Isha, complainant-respondent No. 2, in case bearing FIR No. 145 dated 25.7.1999 Under Sections 498A, 406, Indian Penal Code, with Police Station Civil Lines, Amritsar.
2. The present case was registered on the statement of Isha daughter of Jaswant Singh, resident of Ranjit Avenue, Amritsar. According to the allegations made, she married accused Ranbir Singh on 18.9.1988 at Amritsar. One son namely Jaskaran was born out of this wedlock. Soon after her marriage, her husband and his parents started maltreating her. They would taunt her with the remarks that her parents have not given dowry according to their status. Despite her parents having limited sources, they gave dowry consisting 30 tolas of gold, scooter, T.V. clothes and other articles. Despite that her husband and his parents were not satisfied and they started treating her with cruelty. On 22.10.1991, Ranbir Singh stated in anger that Kara and other ornaments given by her parents were light in weight and they had insulted him by not giving A.C., V.C.R. and car. The complainant tried to explain the inability of her parents to meet the demands made, upon which she was given thrashings by her husband in the presence of his parents. On the next morning, she was taken to her .father's house by her father-in-law Dr. Sant Singh and left there. She remained there for a period of three months. During this period, Ranbir Singh used to threaten the complainant on telephone and also used to go to her house and extend threats to her and her parents while standing at the outer gate. Thereafter, on 19.1.1992, a Panchayat was convened in which Ranbir Singh, father of Ranbir Singh, his relations and complainant's father and her relations participated. Their names have been specified in the report lodged. Before the Panchayat, Ranbir Singh and his father Sant Singh begged pardon and assured the persons present in the Panchayat that acts of cruelty will not be repeated with the complainant and, thereafter, she returned to the matrimonial home. To her dismay, she found that she was again being taunted and beaten. On 3.6.1995, she was given beatings by Ranbir Singh and was further asked to bring Rs. two lacs and a car from her father. Thereafter, she was pushed out of the house and she returned to the house of her parents and started living there. During this period, her father suffered heart-attack. On 25.6.1995, Sant Singh, Prem Singh Makhni, Harbans Singh Bedi, Surjit Singh Khurana, Nath Ram Kaushal and Gurpreet Singh from the side of accused and from the side of complaint, her parents, Maan Singh Chahal, Prof. P.R. Chawla, Dalip Singh Sandhu, Sukhwinder Singh, Balwinder Singh, Prof. Mohinder Singh, Gurdeep Singh, Surinder Singh, Surjit Singh, Kanwarjit Singh and Sandeep Singh, gathered in a Panchayat. Before the Panchayat, Ranbir Singh and his parents begged pardon for their mis-deeds. Thereafter, the complainant was again taken to the matrimonial home by Ranbir Singh and his parents. In November, 1995, Ranbir Singh again demanded car from her. The complainant informed her husband that her father was sick and that he should not insist with the demand. Thereafter, Sumeet Kaur, mother of the complainant, paid Rs. 20,000/- to Ranbir Singh. Ranbir Singh insulted and abused the complainant when she reached the house along with him. She continued to be harassed and beaten by her husband in the house of her in-laws. In April, 1999, Ranbir Singh suggested that he would like to have a separate house and pressed the complainant to bring Rs. 12 lacs. from her father so as to enable him to purchase a plot and then build a house. When her parents failed to meet this demand, she was treated with cruelty by her husband. Accused Satinder and Neena also instigated their brother Ranbir Singh against the complainant. On one day, Mohinder Kaur, mother-in-law of the complainant, told the complainant that she would remarry her son as she has not been able to arrange for the money. Then, she (complainant) came to know that Ranbir Singh was having some relations with one Mandeep living in the neighbourhood. Subsequently, Ranbir Singh also pressed the complainant to execute a deed of temporary divorce so as to enable him to marry Mandeep. Said Mandeep has no brother and owns Kothi No. 86 in the colony in which the petitioners reside. Ranbir Singh thereafter started taking Mandeep to his shop and also joined Computer Centre for getting training. The complainant then had a talk with her father who took respectables to the shop of Ranbir Singh on 13.6.1999 at about 1 p.m. They found Ranbir Singh and Mandeep taking their meals in one plate. The father of the complainant tried to persuade Ranbir Singh not to behave in this manner upon which Ranbir Singh got furious and pushed him out of the shop. Ranbir Singh informed the father of the complainant that a computer had been arranged by the father of Mandeep and that he should persuade his daughter for divorce from him. Sukhwinder Singh and Balwinder Singh tried to convince him but it had no effect. Thereafter, for two-three days the complainant was humiliated by her mother-in-law and treated rudely by father-in-law Sant Singh and husband Ranbir Singh. On 16.6.1999, at about 11 p.m. Ranbir Singh started beating the complainant and at that time, her mother was carrying small tape-recorder. While standing at the door, Ranbir Singh abused the complainant and gave beatings and fist blows to her. He then pulled her hair and hit her head against the bed. Thereafter, he tried to strangulate her and further threatened to kill her. The complainant kept on crying the whole night and thereafter, for next six days she was detained in a room. On 22.6,1999, Ranbir Singh forcibly took complainant and his son in a van and dropped them at some distance from the house of her father. Finding that the behaviour of Ranbir Singh had exceeded all limits, the complainant was got medically examined on 23.6.1999 under the orders of the Ilaqa Magistrate. Again, it was decided to convene a Panchayat. On 4.7.1999 Ranbir Singh informed the complainant that he will visit her after 2-3 days so that a final decision could be taken with regard to their matrimonial affairs but nothing resulted thereafter. The complainant claimed that she has done M.A. and belongs to a respectable family. Her misfortune is that she has been married to a greedy husband like Ranbir Singh who for the sake of dowry was trying to marry Mandeep. Accordingly, she prayed in the complaint that action be taken against the culprits.
3. On completion of investigation, accusations against Ranbir Singh were found to be substantiated and accordingly, he alone was challaned and sent up for trial.
4. During the trial of the case, the statement of Isha, complaint was recorded wherein she narrated the facts as mentioned in the report, Thereafter, an application Under Section 319 of the Code was filed by the prosecution with a prayer to summon Dr. Sant Singh, Mohinder Singh, Mrs. Satinder Kaur and Neena as additional accused for committing offence Under Sections 406/498AI.P.C, along with Ranbir Singh. This application was consented by the accused. The learned Chief Judicial Magistrate, Amritsar, as per order dated 18.2.2002 summoned the petitioners-accused to face trial Under Sections 406/498A, I.RC. along with Ranbir Singh, accused in this case. It is this order which has been challenged in the present petition.
5. I have heard the Counsels representing the parties at length.
6. Counsel representing the petitioners-accused while assailing order dated 18.2.2002 of the Chief Judicial Magistrate, Amritsar, vehemently urged before me that a perusal of the F.I.R. (Annexure P-l) would reveal that no overt-act has been attributed to the petitioners and during the course of investigation, petitioners were found innocent in an enquiry conducted by Ms. Vibhu Raj, IPS Asstt. Superintendent of Police, Amritsar and for that reason, only Ranbir Singh was sent up for trial. It was further contended by the learned Counsel that the trial Judge has failed to take into account that on the basis of general accusations alone, petitioners could not be ordered to face trial.
7. Opposing the submissions made, the learned State Counsel has supported the impugned order for the reasons mentioned therein.
8. What should be the ambit and scope of the provisions of Section 319 of the Code came to be discussed in case Lajpat Rai v. State of Haryana, 2002 (1) RCR 280, wherein in para 2 it was stated as under ;
"12. The above provisions leave no manner of doubt that the pre-requisite for invoking the provisions of Section 319 of the Code is that evidence should disclose the commission of offence by the person who had not been arraigned as an accused for which he should be tried together with other accused. The key to the satisfaction of such a requirement is contained in the words "it appears from the evidence that any person not being an accused has committed an offence". The manifest significance of the word "appears" employed in this section by the Legislature is to cover both the stages envisaged under the provisions of Section 319 of the Code in relation to the person who had not been earlier facing trial as an accused but such person must appear to have committed the offence so that he be tried together with other accused. Though these provisions had vested a discretionary power in the Court but it being a judicial discretion has to be exercised in such a manner which would advance the cause of criminal justice. The Court is duty bound to see that these provisions are not used as a handle by a witness to bring another person in the area of trial without any acceptable basis brought forth in his statement. The Court will definitely come to the rescue of the complainant where on the basis of evidence brought on record, it is clearly made out that the other person named by him had not been sent up to face trial along with other accused unfairly by the prosecution though the other person named on record was also responsible for commission of crime. That being so, it is the paramount duty of the Court that the left over person should be made to face the trial along with other accused so that cause of justice could not be allowed to suffer at the hands of the investigating agency. Therefore, the Court has to be extra cautious while exercising the discretion vested in it and apply the test that prima facie there is sufficient evidence to warrant conviction of the person to be summoned to face trial along with other co-accused."
9. In para 15 of that very judgment, the factors which needed to be looked into for invoking the provision of Section 319 were highlighted and the same are as follows :
(i) the doubt about the involvement of the other accused has no place;
(ii) discretionary power so vested in Cr.P.C. under these provisions should be exercised to advance the cause of criminal justice;
(iii) there is compelling duty on the Court to proceed against other accused;
(iv) the power vested in this section is an extraordinary power which should be used very sparingly."
11. Coming to the facts of the present case, a detailed reference has been made to the circumstances under which the present case came to be registered at the instance of Isha, complainant. During her testimony in Court, P.W. 1 Isha testified that the dowry articles consisting of T.V., scooter, gold ornaments, silver utensils and goods of daily use were given in marriage. T.V. and scooter were handed over to her father-in-law and the remaining goods were handed over to Neena and Satinder who are her sisters-in-law. She has also attributed maltreatment to her father-in-law. She stated that she was thrown out of the matrimonial home. She also stated that her mother had entrusted Rs, 20,000/- to Ranbir Singh and in April, 1999, she was asked to bring Rs. 12 lacs and on her inability to do so, she was beaten with boots by her husband at the instigation of his sisters. She stated that she was not allowed to move out of the matrimonial house and ultimately, thrown out of the house. Further, according to her, on 18.7.1999 she had gone to the house of accused for taking dowry articles but they refused to return the same.
12. From the facts narrated above, it is manifest that it is Ranbir Singh, husband of the complainant, who was dissatisfied with the dowry and had been asked her to bring tar and arrange for cash amount of Rs. 12 lacs so as to enable him to purchase a plot and build a house thereon and subjecting her to beatings on several occasions. At the same time, the complainant has made omnibus allegations against the petitioners accused and has tried /to rope them all as co-accused to face trial with Ranbir Singh for the commission of offence Under Sections 406/498A, Indian Penal Code. The Trial Magistrate was duty-bound to take into account that the marriage of the parties in this case had been solemnized on 18.9.1988. At no stage prior to the time the present case came to be registered, any report was made by the complainant against the petitioners. In this case, the police statement of Jaswant Singh was recorded on 14.8.1999 wherein he has not attributed any overt-act to the petitioners-accused. This circumstance again could not have been overlooked by the Trial Magistrate while deciding application Under Section 319 of the Code. He was duty bound to take into account the power vested in him Under Section 319 of the Code to summon the petitioners-accused has to be used sparingly and primarily to advance the cause of criminal justice but not as a handle at the hands of the complainant to cause harassment to the persons who are not involved in the commission of crime. The learned Magistrate failed to take into account the purpose and purport for which the provisions of Section 319 of the Code had been enacted by the Legislature. The circumstances brought on record clearly show that the discretionary power vested in the Court to summon the petitioners-accused without taking into account the material facts brought on record. The enumerated circumstances do not justify that the statement of Isha should be made the basis for summoning the petitioners-accused to face trial along with Ranbir Singh accused.
For the foregoing reasons, the petition is accepted and order dated 18.2.2002 of the Chief Judicial Magistrate, Amritsar, summoning the petitioners-accused to face trial along with accused Ranbir Singh, is quashed.
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