Kewal Krishan Vs. State of Punjab - Court Judgment

SooperKanoon Citationsooperkanoon.com/1058074
CourtPunjab and Haryana High Court
Decided OnFeb-26-2013
AppellantKewal Krishan
RespondentState of Punjab
Excerpt:
crl.rev.no.2323 of 2012 (o&m) 1 in the high court of punjab and haryana at chandigarh crl.rev.no.2323 of 2012 (o&m) date of decision:26. 2.2013 kewal krishan ......petitioner versus state of punjab .......respondent coram: hon'ble mrs.justice sabina present: mr.a.a.pathak, advocate, for the petitioner. mr.g.s.khandebad, dag, punjab. none for the complainant. **** sabina, j. this petition has been filed under section 401 of the code of criminal procedure, 1973 (cr.p.c.for short) challenging the order dated 11.6.2012, whereby the petitioner was summoned to face trial as an additional accused under section 319 cr.p.c.learned counsel for the petitioner has submitted that the petitioner was found innocent during investigation and was cited as a prosecution witness. petitioner was declared hostile during his examination before the trial court at the request of the public prosecutor and thereafter, the prosecution moved an application under section 319 cr.p.c.for summoning the petitioner to face the crl.rev.no.2323 of 2012 (o&m) 2 trial as an additional accused. there was no material against the petitioner to proceed against him as an additional accused. learned state counsel, on the other hand, has opposed the petition. after hearing learned counsel for the petitioner as well as learned state counsel, i am of the opinion that this petition deserves dismissal. it has been held by the apex court in case suman versus state of rajasthan and another, (2010) 1 supreme court cases 250 as under:- “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 cours.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 cours.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 crl.rev.no.2323 of 2012 (o&m) 3 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 cours.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.” “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 crpc. in her complaint respondent no.2 alleged that crl.rev.no.2323 of 2012 (o&m) 4 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 instigations 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 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 crpc, 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 crl.rev.no.2323 of 2012 (o&m) 5 illegality or perversity warranting interference under section 482 crpc. 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 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.” section 319 reads as under:- “power to proceed against other persons appearing to be guilty of offence:- 1) where, in the cours.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. crl.rev.no.2323 of 2012 (o&m”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.” annexure p-1 is the statement of the petitioner before the trial court. a perusal of the same reveals that the petitioner had appeared as pw-7 and had failed to support the prosecution case. a perusal of annexure p-3 reveals that complainant chand singh had appeared in the witness box as pw-1. the said witness deposed that on 28.4.2010, he had reached mandi ahmedgarh and met the petitioner in guru teg bahadur market. petitioner received a phone call from parnish kumar @ kala that ` 1,20,000/- was to be given to the police and the said amount was demanded from the complainant. complainant was threatened that otherwise he would be implicated in some false case. complainant withdrew ` 1,00,000/- from his account and brought ` 20,000/- from his house and placed the said currency notes in an envelop. crl.rev.no.2323 of 2012 (o&m) 7 accused parnish kumar @ kala along with r.k.sood reached the spot. complainant told them that he would give the said amount to them after consulting his son. then complainant along with parnish kumar @ kala, r.k.sood and petitioner reached barnala in the car of the petitioner. thereafter, they went to the hospital but could not talk to his son as his condition was serious. then complainant along with petitioner, parnish kumar @ kala and r.k.sood sat in the lawn outside the hospital. parnish kumar @ kala asked the petitioner to take money from the complainant. then complainant handed over ` 1,20,000/- in an envelop to the petitioner, who handed over the same to parnish kumar @ kala. thereafter, parnish kumar @ kala and the petitioner left with the amount in the car and said that they would hand over the same to the police. after 20-25 minutes, petitioner and parnish kumar @ kala returned back and told them that they had done the job. thereafter, they all took tea. son of the complainant was discharged from the hospital on 28.4.2010. complainant later came to knot that police had not demanded any money from them not any amount had been paid to the police by them. the amount had been paid by the complainant to parnish kumar @ kala and the petitioner and he did not knot as to whether they had actually paid the said amount to the police or not. thus, from the statement of the complainant, it is evident that the petitioner and parnish kumar @ kala had taken ` 1,20,000/- from the complainant on the pretext that it would be handed over to the police otherwise the complainant party would be involved in false criminal case. although the petitioner was declared innocent during investigation and was cited as a crl.rev.no.2323 of 2012 (o&m) 8 prosecution witness but he failed to support the prosecution case during trial, whereas, the complainant has levelled specific allegations against the petitioner. in these circumstances, there was sufficient material before the trial court to proceed against the petitioner and summon him to face the trial as an additional accused. hence, no ground for interference by this court is made out. dismissed. sabina) judge february 26, 2013 anita
Judgment:

Crl.Rev.No.2323 of 2012 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No.2323 of 2012 (O&M) Date of decision:

26. 2.2013 Kewal Krishan ......Petitioner Versus State of Punjab .......Respondent CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.A.A.Pathak, Advocate, for the petitioner.

Mr.G.S.Khandebad, DAG, Punjab.

None for the complainant.

**** SABINA, J.

This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C.for short) challenging the order dated 11.6.2012, whereby the petitioner was summoned to face trial as an additional accused under Section 319 Cr.P.C.Learned counsel for the petitioner has submitted that the petitioner was found innocent during investigation and was cited as a prosecution witness.

Petitioner was declared hostile during his examination before the trial Court at the request of the public prosecutor and thereafter, the prosecution moved an application under Section 319 Cr.P.C.for summoning the petitioner to face the Crl.Rev.No.2323 of 2012 (O&M) 2 trial as an additional accused.

There was no material against the petitioner to proceed against him as an additional accused.

Learned State counsel, on the other hand, has opposed the petition.

After hearing learned counsel for the petitioner as well as learned State counsel, I am of the opinion that this petition deserves dismissal.

It has been held by the Apex Court in case Suman versus State of Rajasthan and another, (2010) 1 Supreme Court Cases 250 as under:- “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 couRs.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 couRs.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 Crl.Rev.No.2323 of 2012 (O&M) 3 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 couRs.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.”

“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 CrPC.

In her complaint Respondent No.2 alleged that Crl.Rev.No.2323 of 2012 (O&M) 4 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 instigations 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 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 CrPC, 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 Crl.Rev.No.2323 of 2012 (O&M) 5 illegality or perversity warranting interference under Section 482 CrPC.

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 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.”

Section 319 reads as under:- “Power to proceed against other persons appearing to be guilty of offence:- 1) where, in the couRs.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.

Crl.Rev.No.2323 of 2012 (O&M”

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.”

Annexure P-1 is the statement of the petitioner before the trial Court.

A perusal of the same reveals that the petitioner had appeared as PW-7 and had failed to support the prosecution case.

A perusal of Annexure P-3 reveals that complainant Chand Singh had appeared in the witness box as PW-1.

The said witness deposed that on 28.4.2010, he had reached Mandi Ahmedgarh and met the petitioner in Guru Teg Bahadur Market.

Petitioner received a phone call from Parnish Kumar @ Kala that ` 1,20,000/- was to be given to the police and the said amount was demanded from the complainant.

Complainant was threatened that otherwise he would be implicated in some false case.

Complainant withdrew ` 1,00,000/- from his account and brought ` 20,000/- from his house and placed the said currency notes in an envelop.

Crl.Rev.No.2323 of 2012 (O&M) 7 Accused Parnish Kumar @ Kala along with R.K.Sood reached the spot.

Complainant told them that he would give the said amount to them after consulting his son.

Then complainant along with Parnish Kumar @ Kala, R.K.Sood and petitioner reached Barnala in the car of the petitioner.

Thereafter, they went to the hospital but could not talk to his son as his condition was serious.

Then complainant along with petitioner, Parnish Kumar @ Kala and R.K.Sood sat in the lawn outside the hospital.

Parnish Kumar @ Kala asked the petitioner to take money from the complainant.

Then complainant handed over ` 1,20,000/- in an envelop to the petitioner, who handed over the same to Parnish Kumar @ Kala.

Thereafter, Parnish Kumar @ Kala and the petitioner left with the amount in the car and said that they would hand over the same to the police.

After 20-25 minutes, petitioner and Parnish Kumar @ Kala returned back and told them that they had done the job.

Thereafter, they all took tea.

Son of the complainant was discharged from the hospital on 28.4.2010.

Complainant later came to knot that police had not demanded any money from them not any amount had been paid to the police by them.

The Amount had been paid by the complainant to Parnish Kumar @ Kala and the petitioner and he did not knot as to whether they had actually paid the said amount to the police or not.

Thus, from the statement of the complainant, it is evident that the petitioner and Parnish Kumar @ Kala had taken ` 1,20,000/- from the complainant on the pretext that it would be handed over to the police otherwise the complainant party would be involved in false criminal case.

Although the petitioner was declared innocent during investigation and was cited as a Crl.Rev.No.2323 of 2012 (O&M) 8 prosecution witness but he failed to support the prosecution case during trial, whereas, the complainant has levelled specific allegations against the petitioner.

In these circumstances, there was sufficient material before the trial Court to proceed against the petitioner and summon him to face the trial as an additional accused.

Hence, no ground for interference by this Court is made out.

Dismissed.

SABINA) JUDGE February 26, 2013 anita