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Bhawani Shankar Gahlot vs State & Ors on 1 February, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 732 / 2016
Bhawani Shankar Gahlot S/o Hari Kishan, resident of Alakh Sagar
Road, Koyala Gali, Bikaner.

—-Petitioner
Versus

1. State of Rajasthan through P.P.

2. Subh Laxmi Tanwar W/o Late Kishan Tanwar R/o Dhavdiyo
Ka Mohalla, Behind Kishan Palace, Purani Ginnani, Bikaner
(Rajasthan).

3. Radha Tanwar W/o Panwan Kumar Tanwar R/o Dhavdiyo Ka
Mohalla, Behind Kishan Palace, Purani Ginnani, Bikaner
(Rajasthan).

4. Rakhi Gehlot W/o Devrqaj Gehlot R/o Ranisar Bas, Behind
M.S. College, Near Ramdev Temple, Bikaner

—-Respondents
__
For Petitioner(s) : Mr. S.K. Verma.

For Respondent(s) : Mr. O.P. Rathi, PP.

Mr. Vineet Jain.

__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Order
Date of Pronouncement : 01/02/2018

By way of this revision, the petitioner complainant Bhawani

Shankar Gahlot has approached this Court for challenging the

order dated 6.6.2016 passed by the learned Sessions Judge

(Woman Atrocities Cases), Bikaner in Sessions Case No.14/2014

arising out of F.I.R. No.233/2013, P.S. Mahila Thana Bikaner

whereby the application preferred by the prosecution under

Section 319 Cr.P.C. for summoning the respondents No.2, 3 and 4

to face trial as co-accused for the offences under Sections 498A,

304B and 34 I.P.C. was rejected.

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Prosecution allegations in brief are that Monika daughter of

the petitioner herein was married to Nirmal Kumar Tanwar (the

charge-sheeted accused) on 6.5.2013. It is alleged that

wholesome dowry was given in the marriage but right from

inception, all the matrimonial relatives including the husband were

torturing Smt.Monika on account of dowry demands. On

1.12.2013, petitioner Bhawani Shanker’s younger sister-in-law

received a call from Monika’s sister-in-law Rakhi that Monika was

seriously ill. On this, the first informant and other family members

rushed to the hospital and came to know that Monika had passed

away. The first informant Bhawani Shankar (Monika’s father)

lodged a report on the very same day at 5.30 PM at the Police

Station Mahila Thana Bikaner alleging therein that Nirmal Kumar,

husband of Monika, Jeth Pawan Kumar, Jethani Rekha and Nanad

Rakhi were indulged in harassing and humiliating Smt.Monika for

demand of dowry. Monika was pregnant at the time of her death

and all the matrimonial relatives including the respondents herein

and her husband were responsible for her unnatural death within

one year of her marriage with Nirmal Kumar. On the basis of this

report, an F.I.R. No.233/2013 was registered and investigation

commenced. The Investigating Officer, after conducting thorough

investigation filed a charge-sheet only against Nirmal Kumar and

Pawan Kumar with the conclusion that only these two persons

were responsible for instigating the deceased to commit suicide.

The case was committed to the court of Sessions from where it

was transferred to the court of the learned Special Judge (Woman

Atrocities Cases), Bikaner for trial. 9 witnesses were examined by
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[CRLR-732/2016]

the prosecution whereafter, the application for summoning

additional accused came to be moved under Section 319 Cr.P.C.

before the trial court and was rejected by order dated 6.6.2016

which is under challenge in the instant revision. Notice of the

revision was served on the respondents, who are represented by

learned counsel Shri Vineet Jain.

Shri S.K.Verma learned counsel representing the petitioner

complainant vehemently urged that the learned trial court

committed grave error in facts as well as law while rejecting the

application moved on behalf of the prosecution under Section 319

Cr.P.C. to summon the respondents herein as additional accused in

the case. He contended that the petitioner first informant and

numerous other witnesses have made specific allegations against

the respondents regarding the harassment and humiliation meted

out to the deceased on account of demand of dowry. The cruel

behaviour of the accused was to such grave extent that Monika

committed suicide while carrying a child in her womb within a year

of her marriage with the principal accused Nirmal Kumar. He relied

upon the Hon’ble Supreme Court Judgment in the case of

Hardeep Singh Vs. State of Punjab Ors. reported in 2014

Cr.L.R. (SC) 310 and urged that the reasons assigned by the

learned trial Judge in the impugned order for turning down the

prayer of the prosecution to summon the respondents as

additional accused in the case is absolutely flimsy and farfetched.

As per him, the trial Judge committed grave error while attaching

significance to the rejection of the earlier application preferred by

the prosecution under Section 190 Cr.P.C. He contended that the
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[CRLR-732/2016]

said application was rejected by the committing Magistrate

whereas the present application was moved under Section 319

Cr.P.C. after evidence had been recorded at the trial. The evidence

so recorded gives ample inferences so as to establish involvement

of the left out matrimonial relatives in the crime. As per Shri

Verma, the facts and ratio of Hardeep Singh’s judgment (supra)

clearly apply to the present case at all fours and hence, the

impugned order should be set aside and the respondents be

summoned to face trial in the case for the offences mentioned

above.

Per contra, Shri Vineet Jain, learned counsel representing the

respondents No.2, 3 and 4 who were left out by the Police from

the array of accused after investigation vehemently opposed the

submissions advanced by Shri Verma and contended that the

learned trial Judge considered and appreciated the entire evidence

available on record and assigned detailed and sound reasons for

turning down the prosecution’s prayer to summon the respondents

as additional accused in this case. He contended that while

considering an application under Section 319 Cr.P.C., the degree of

satisfaction required to be recorded for summoning the left out

persons as additional accused in the case has to be on a higher

pedestal than what is required at initial stage of taking cognizance

on the basis of the Police report or the complaint as the case may

be. He contended that the evidence of the prosecution witnesses

examined at the trial does not instil confidence that the

respondents herein who were not charge-sheeted by the Police

should be put up for trial alongwith the two charge-sheeted
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accused. He drew the Court’s attention towards the statements of

the witnesses Kamal Tanwar, Bhawani Shankar Gahlot (the

petitioner herein), Shivshankar, Kishan Pyari as well as Raj Kumar

Gahlot recorded at the trial and urged that it is virtually an

admitted position reflected from record that the pertinent and

specific allegation of these material prosecution witnesses

regarding the so-called harassment meted out to the deceased

was in relation to the demand of a car. However, these witnesses

admitted in cross-examination that the accused Nirmal Kumar

(husband) was already having a car from before the marriage. The

allegation regarding so-called demand of car is missing in the

written First Information Report. The witness Kishan Pyari (mother

of the deceased) admitted in her cross-examination that the

accused had been given a cheque in the marriage but they

returned the same. He urged that it is clearly a case wherein, the

deceased Smt.Monika did not commit suicide because of the so-

called harassment meted out to her in relation to demand of

dowry and that the prosecution has deliberately concealed the

true genesis of the incident. He contended that even if the highest

allegations of prosecution are accepted on the face of the record

then too, there is no material so as to justify summoning of the

respondents as additional accused in this case and craved

rejection of the revision.

I have given my thoughtful consideration to the arguments

advanced at the bar and have gone through the material available

on record.

The principles guiding the concept of summoning of
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additional accused at the stage of 319 Cr.P.C. are now settled

beyond the pale of doubt with the authoritative pronouncement

made by the Constitution Bench of Supreme Court i.e. Hardeep

Singh’s case (supra). A few relevant observations from the said

Supreme Court Judgment require reference at this stage and are

quoted hereinbelow:-

“98. Power under Section 319 Code of Criminal
Procedure is a discretionary and an extra-ordinary power.
It is to be exercised sparingly and only in those cases
where the circumstances of the case so warrant. It is not
to be exercised because the Magistrate or the Sessions
Judge is of the opinion that some other person may also
be guilty of committing that offence. Only where strong
and cogent evidence occurs against a person from the
evidence led before the court that such power should be
exercised and not in a casual and cavalier manner.

99. Thus, we hold that though only a prima facie
case is to be established from the evidence led before
the court not necessarily tested on the anvil of Cross-
Examination, it requires much stronger evidence than
mere probability of his complicity. The test that has to be
applied is one which is more than prima facie case as
exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of
such satisfaction, the court should refrain from exercising
power under Section 319 Code of Criminal Procedure In
Section 319 Code of Criminal Procedure the purpose of
providing if ‘it appears from the evidence that any person
not being the accused has committed any offence’ is
clear from the words “for which such person could be
tried together with the accused.” The words used are not
‘for which such person could be convicted’. There is,
therefore, no scope for the Court acting under Section
319 Code of Criminal Procedure to form any opinion as to
the guilt of the accused.

Q.(v) In what situations can the power under
this section be exercised: Not named in FIR; Named in
the FIR but not charge-sheeted or has been discharged?

110. We accordingly sum up our conclusions as
follows:

Question Nos. 1 III
Q.1 What is the stage at which power under Section 319
Code of Criminal Procedure can be exercised?

AND

Q. III Whether the word “evidence” used in Section
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319(1) Code of Criminal Procedure has been used in a
comprehensive sense and includes the evidence collected
during investigation or the word “evidence” is limited to
the evidence recorded during trial?

A. In Dharam Pal’s case, the Constitution Bench has
already held that after committal, cognizance of an
offence can be taken against a person not named as an
accused but against whom materials are available from
the papers filed by the police after completion of
investigation. Such cognizance can be taken under
Section 193 Code of Criminal Procedure and the Sessions
Judge need not wait till ‘evidence’ under Section 319
Code of Criminal Procedure becomes available for
summoning an additional accused.

Section 319 Code of Criminal Procedure, significantly,
uses two expressions that have to be taken note of i.e.
(1) Inquiry (2) Trial. As a trial commences after framing
of charge, an inquiry can only be understood to be a pre-
trial inquiry. Inquiries under Sections 200, 201, 202 Code
of Criminal Procedure; and under Section 398 Code of
Criminal Procedure are species of the inquiry
contemplated by Section 319 Code of Criminal Procedure
Materials coming before the Court in course of such
enquiries can be used for corroboration of the evidence
recorded in the court after the trial commences, for the
exercise of power under Section 319 Code of Criminal
Procedure, and also to add an accused whose name has
been shown in Column 2 of the chargesheet.

In view of the above position the word ‘evidence’ in
Section 319 Code of Criminal Procedure has to be
broadly understood and not literally i.e. as evidence
brought during a trial.

Question No. II
Q. II Whether the word “evidence” used in Section
319(1) Code of Criminal Procedure could only mean
evidence tested by cross-examination or the court can
exercise the power under the said provision even on the
basis of the statement made in the examination-in-chief
of the witness concerned?

A. Considering the fact that under Section 319 Code of
Criminal Procedure a person against whom material is
disclosed is only summoned to face the trial and in such
an event under Section 319(4) Code of Criminal
Procedure the proceeding against such person is to
commence from the stage of taking of cognizance, the
Court need not wait for the evidence against the accused
proposed to be summoned to be tested by cross-
examination.

Question No. IV
Q. IV What is the nature of the satisfaction required to
invoke the power under Section 319 Code of Criminal
Procedure to arraign an accused? Whether the power
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under Section 319(1) Code of Criminal Procedure can be
exercised only if the court is satisfied that the accused
summoned will in all likelihood be convicted?

A. Though under Section 319(4)(b) Code of Criminal
Procedure the accused subsequently impleaded is to be
treated as if he had been an accused when the Court
initially took cognizance of the offence, the degree of
satisfaction that will be required for summoning a person
under Section 319 Code of Criminal Procedure would be
the same as for framing a charge. The difference in the
degree of satisfaction for summoning the original
accused and a subsequent accused is on account of the
fact that the trial may have already commenced against
the original accused and it is in the course of such trial
that materials are disclosed against the newly summoned
accused. Fresh summoning of an accused will result in
delay of the trial-therefore the degree of satisfaction for
summoning the accused (original and subsequent) has to
be different.

Question No. V
Q. V Does the power under Section 319 Code of Criminal
Procedure extend to persons not named in the FIR or
named in the FIR but not charge-sheeted or who have
been discharged?

A. A person not named in the FIR or a person though
named in the FIR but has not been chargesheeted or a
person who has been discharged can be summoned
under Section 319 Code of Criminal Procedure provided
from the evidence it appears that such person can be
tried along with the accused already facing trial.
However, in so far as an accused who has been
discharged is concerned the requirement of Sections 300
and 398 Code of Criminal Procedure has to be complied
with before he can be summoned afresh.

The matters be placed before the appropriate Bench
for final disposal in accordance with law explained
hereinabove.”

Thus, it is now well settled that for the prosecution evidence

to be considered sufficient so as to direct addition of left out

accused to face trial by exercising powers under Section 319

Cr.P.C., the evidence recorded at trial should indicate

circumstances stronger than grave suspicion. The test that has to

be applied is that the evidence led at trial should indicate far

stronger circumstances against the left out persons rather than
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simply presenting a prima-facie case. The satisfaction should meet

the standard of evidence graver than that sufficient to frame

charge but not extending to the threshold that the evidence if

goes unrebutted, would lead to conviction of such accused. In

absence of evidence sufficient to draw such inference, the Court

should refrain from exercising power under Section 319 Cr.P.C.

Thus, in order to impeach the impugned order, the same would

have to be tested in light of the above observations made by

Hon’ble Apex Court in Hardeep Singh’s case (supra) and the Court

would have to sift the evidence to find out whether the same

touches the anvil of something beyond prima-facie case or grave

suspicion or not. It is not in doubt that Smt.Monika committed

suicide by hanging herself in the matrimonial home within a short

duration of one year of her marriage with the charge-sheeted

accused Nirmal Kumar. The F.I.R. was lodged on the very day of

the incident i.e. on 1.12.2013 by Bhawani Shankar the petitioner

herein being the father of the deceased. In the F.I.R., vague and

general allegations were levelled that all the matrimonial relatives

were making demands from the deceased and were harassing her

to satisfy the same. However, it is manifest from perusal of the

written report (Ex.P6) that no pertinent allegation was made in

the report regarding the particular item of dowry being demanded

by the accused. The first informant did not even mention in the

report that he ever conveyed his reluctance to accede the so-

called demands of the accused. It cannot be gainsaid that an

allegation of demand of dowry would gain significance and would

be construed as harassment only if the same is not accepted by
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[CRLR-732/2016]

the recipient. In case, a demand is made casually and is satisfied

without a demur then obviously, there would be no occasion for

the recipient of the demand to feel harassed or humiliated. This

kind of demand may of course be covered by the offences under

the Dowry Prohibition Act and would cover both the parties in its

umbrella. The Investigating Officer concluded in the charge-sheet

that on the very day of the incident, Vidhansabha elections were

being polled. Previously, Monika used to cast her vote from her

father’s house but after her marriage with Nirmal Kumar, her

name had been added in the voter list of the ward where, her

matrimonial home was located. Her father came to the

matrimonial home and wanted to take Monika to cast her vote as

per his desire. Hot words were exchanged between Nirmal Kumar

and the petitioner on this issue and Monika was not allowed to

accompany her father. She became extremely perturbed by her

father’s insult in the matrimonial home and committed suicide.

The first informant mentioned in the F.I.R. that he went to

Monika’s matrimonial home at 1 O’clock on 1.12.2013 so as to

take her for casting the vote but the in-laws did not allow her to

accompany him. At that time, Monika was looking hale and hearty.

Thus obviously, the witness did not notice anything amiss when he

met Monika on 1.12.2013 i.e. on the very day of the incident.

What transpired between them and the incident of suicide would

be within the exclusive knowledge of her husband Nirmal Kumar,

who stands charge-sheeted by the Police. The principal

prosecution witnesses including the petitioner Bhawani Shankar

(P.W.5), Shivshankar (P.W.6) the uncle of the deceased, Kishan
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Pyari (P.W.8) mother of the deceased categorically denied demand

of a car was being made from Monika. Thus apparently, the

evidence of the material prosecution witnesses regarding the so-

called demand of car being made from Monika is highly

contradictory. Rajkumar Gahlot, the brother of the deceased, has

restricted the allegations of demand and harassment meted out to

the deceased against Jeth Pawan Kumar, mother in law

Shubhlaxmi and the husband Nirmal Kumar. The mother in law

Shubhlaxmi was admittedly bedridden for the previous four years

because she had met with an accident. The learned trial court

discussed all these significant circumstances emanating from the

statements of the prosecution witnesses and concluded that the

evidence available on record did not instill confidence in the mind

of the court so as to form an opinion regarding existence of

material beyond mere preponderance of probabilities so as to

summon the respondents for facing trial in this case as additional

accused.

As an upshot of the above discussion, I find no infirmity or

shortcoming either factual or legal in the impugned order dated

6.6.2016 so as to interfere therein.

Consequently, the instant revision preferred by the petitioner

complainant Bhawani Shankar is hereby rejected as being devoid

of merit. The trial court shall try and expedite the proceedings.

(SANDEEP MEHTA)J.

/tarun goyal/

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