SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sonia Suhag vs State Of Haryana & Anr on 22 December, 2017

CRM-M-8317-2017 (OM) -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

CRM-M-8317-2017 (OM)
Date of decision: 22.12.2017

Sonia Suhag …Petitioner

Versus

State of Haryana another …Respondents

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. N. S. Shekhawat, Advocate
for the petitioner.

Mr. P. P. Chahar, DAG, Haryana.

Mr. Manish Soni, Advocate
for respondent No. 2.

JAISHREE THAKUR, J.

1. This instant petition has been filed under Section 482 Cr.P.C.

for quashing of the order dated 01.03.2017 passed by the Additional

Sessions Judge and order dated 06.02.2017 passed by the JMIC Gurugram ,

whereby an application under Section 319 Cr.P.C., in case FIR No. 256

dated 30.07.2009 registered under Sections 498A, 406, 323 and 506 of the

IPC, has been dismissed.

2. In order to understand the checkered history of the case and the

revision petition arising hereunder, a few facts need to be noticed. A

marriage was solemnized between the petitioner and Parmod Kumar on

03.07.2002. A matrimonial dispute arose between the parties which started

the onset of this bitter litigation. The matter was compromised between the

parties and the petitioner herein went back to her matrimonial home on the

assurance given that she would be treated with due love and respect.

1 of 10
24-12-2017 07:10:38 :::
CRM-M-8317-2017 (OM) -2-

However on 01.01.2008, a scuffle took place between the parties which led

to the lodging of an FIR No. 7 under Sections 323 and 506 of the IPC on

03.01.2008 against the complainant and her father. Since the dispute could

not be resolved amicably, FIR No.256 dated 30.07.2009 was registered on

the basis of complaint made by petitioner-complainant against her husband

Parmod, her parents-in-law, her brother-in-law Manoj, and other family

members namely Devender, Ruchi and Vinod with allegations of demand

of dowry, harassment, cruelty etc. Manoj, Devender, Ruchi and Vinod were

found innocent during investigation and only the husband and parents-in-

law of the petitioner were summoned to face trial. The petitioner herein

stepped into the witness box as PW-3 and reiterated the allegations as set

out in the FIR while also submitting that respondent No. 2 Manoj had made

an attempt to attack her. This statement was recorded on 01.08.2014 and,

thereafter, an application under Section 319 Cr.P.C. was filed for

summoning Manoj and others, not chargesheeted as accused, which

application was dismissed by the JMIC by an order dated 24.09.2014,

subsequently confirmed by order dated 25.05.2016 passed by the Additional

Sessions Judge, Gurugram. The dismissal of the application under Section

319 Cr.P.C. and the orders passed there under were challenged by the

petitioner in CRM-M-35582-2015 before this High Court in Sonia Suhag

vs. State of Haryana. The High Court relying upon a judgment rendered in

Hardeep Singh vs. State of Punjab dismissed the revision petition by order

dated 05.02.2016. Thereafter, the petitioner once again moved an

application on 23.01.2017 under Section 319 Cr.P.C. seeking to summon

Manoj as an accused in the said proceedings. In the application, it was

stated that the complainant while stepping into the witness box had

2 of 10
::: Downloaded on – 24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -3-

specifically attributed respondent No. 2 (person sought to be summoned)

with causing injuries and assaulting the complainant in an incident which

occurred on 26.12.2007. It was further averred in the application, that a

complaint was filed by her father to In-Charge, Police Station Civil Lines,

Gurugram (Annexure P-4). Factum of injuries on the person of the

complainant has been proved by PW-21 Dr. Mukesh Khattar who had

treated the petitioner on 26.12.2007 and had also stated that the petitioner

had suffered perforation in the right ear. Other allegations of cruelty

attributed to respondent No. 2 were also set out and, in this background,

prayer was made for summoning of respondent No. 2. The application filed

under section 319 Cr.P.C was dismissed by the JMIC by an order dated

06.02.2017 and the Additional Sessions Judge, Gurugram dismissed the

revision filed by the petitioner on the ground that there was concealment of

facts as it had not been brought to the notice of the Court that an earlier

application filed under Section 319 Cr.P.C. seeking to summon respondent

No. 2 has already been dismissed. It is also noticed by both the Courts

below that no additional evidence had been brought on to the record to

warrant summoning of the respondent to face trial. Aggrieved against the

dismissal of the application, the instant petition has been filed.

3. Mr. N.S. Shekhawat, learned counsel for the petitioner, argues

that from the very first instance there have been specific allegations against

respondent No. 2 Manoj that he had subjected the complainant-petitioner to

cruelty, had physically abused her by slapping her on the face which

resulted in perforation of the ear drum and, therefore, he should have been

summoned as an accused under Section 319 Cr.P.C. It is also argued that

evidence has been led of Dr. Mukesh Khattar PW-21 and medical

3 of 10
24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -4-

prescription Exhibit PW 21/A which would prove the averments made. It is

submitted that the Courts below have not decided the application on merits

and have dismissed it on the grounds of concealment of facts. It is argued

that the order passed by the Courts below dismissing the application under

Section 319 Cr.P.C. is part of the current proceedings available on the

record of the file and, therefore, there is no concealment.

4. Per contra, Mr. Manish Soni, learned counsel for respondent

No. 2, submits that the application per se is not maintainable primarily on

the grounds of concealment since the petitioner herein had not disclosed the

factum of dismissal of a similar application seeking to summon respondent

No. 2 as an accused. It is also argued that the matter stands thoroughly

investigated and nothing new or substantial has been brought on to the

record during trial for this Court to invoke its extraordinary powers under

Section 319 Cr.P.C. to summon respondent No. 2 as an accused. It is also

argued that the complaint (Annexure P-4) that has been relied upon, in

which it had been stated that Manoj had slapped the complainant is not

exhibited before the Courts and is only marked, therefore, there is no basis

for any subsequent evidence. It is also argued that the petitioner herein has

herself been convicted in the FIR No. 7 dated 03.01.2008 to undergo simple

imprisonment for a period of one year and the divorce petition filed by the

husband of on account of cruelty has been upheld up till the Supreme Court.

5. I have heard learned counsel for the parties and have perused

the record of the case.

6. The petitioner herein seeks to summon respondent No. 2, a

person who was found innocent during investigation, as an additional

accused under Section 319 Cr.P.C. This High Court has already upheld

4 of 10
24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -5-

orders of the Courts below dismissing a previous application filed by the

petitioner under Section 319 Cr.P.C. in CRM-M-35582-2015 by holding as

under:

”As per judgment of Hon’ble the Apex Court in Hardeep
Singh and another vs State of Punjab and others 2014(1)
RCR (Criminal) 623, the degree of satisfaction for
summoning a person under Section 319 Cr.P.C would be the
same as for framing of charge but satisfaction of the Court
is to be relevant in case, the trial Court is of the opinion that
some other persons were also involved in the commission of
the offence. Not only prima facie case is to be established
from the evidence led before the Court but that material,
which has come in the form of statement, is sufficient for
framing of charge. In view of the facts, there is no merit in
the contentions raised by learned counsel for the petitioner
and the petition, being devoid of any merit, is hereby
dismissed. ”

7. This Court is seized of the question as to whether the Courts

below have rightly dismissed the second application filed under section 319

Cr.P.C. as well as to answer the question whether the petitioner has been

able to make out a case for summoning of respondent No. 2 ?

8. Section 319 Cr.P.C. is reproduced herein below:

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 a fresh, and the witnesses re- heard;

5 of 10
::: Downloaded on – 24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -6-

(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.

9. Admittedly an FIR No. 256 dated 30.7.2009 was registered on

the basis of a complaint made by the petitioner against her husband, her

parents in law, her brother-in-law Manoj, Devender, Ruchi and Vinod. In

the said FIR allegations had been made against all the accused however, on

the basis of the investigation only husband Parmod, and the parents-in-law

were summoned to face trial. The complainant petitioner stepped into the

witness box and recorded a statement giving details about the cruelty and

the threats which she and her father were subjected to at the hands of the

accused, while stating that respondent No. 2 had beaten her up and tried to

remove her clothes. After the statement was recorded an application under

section 319 Cr.P.C. was filed seeking to summon all those persons who had

been put in column No. 2 in the challan presented, which application was

dismissed by both the JMIC and the revisional Court, and affirmed in the

High Court in CRM-M-35582-2015. Now another application dated

23.01.2017 has been preferred seeking to summon only Sh. Manoj,

respondent No. 2 herein, as accused to face trial.

10. For exercising extraordinary powers under Section 319 Cr.P.C.,

this Court has to be satisfied as to whether there are sufficient grounds made

out in the 2nd application to summon the respondent as an additional

accused. Power under Section 319 Cr.P.C is an extraordinary power, which

is to be used sparingly, only if, there are compelling reasons. The law

regarding power to summon an accused under section 319 Cr.P.C is well-

settled in a catena of judgments reported as Sarojben Ashwinkumar Shah

6 of 10
24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -7-

Etc Vs State Of Gujarat and Others, 2011 (3) R.C.R. (Criminal) 852,

Hassle and Another Versus State Of Haryana, 2011 (2) R.C.R. (Criminal)

429, Ram Singh and Others Versus Ram Niwas and Another, 2009 (3)

R.C.R. (Criminal) 501 and Hardeep Singh and Another Versus State Of

Punjab and Others, 2014 (1) R.C.R. (Criminal) 623 amongst several

others. On a conjoint reading of the judgments referred to above, the

principle that can be culled out is, that Courts should not summon a person

to face trial under Section 319 Cr.P.C only on the basis of a casual statement

made by a witness. The power to summon an accused under Sections 319

Cr.P.C. must be used sparingly and only if compelling reasons exist.

Moreover, the Court is to arrive at a satisfaction that evidence produced on

behalf of the prosecution, if unrebutted, would lead to conviction of the

person sought to be added as accused in the case. The Supreme Court in its

recent judgment rendered in Brijendera Singh and others versus state of

Rajasthan Singh, (2017) 7 SCC 706 has further held that power can be

invoked by the trial Court at any stage during trial that is before conclusion

of a trial, once trial Court finds that there is some evidence against such a

person on the basis of which evidence it can be gathered that he appears to

be guilty of such an offence. The term ‘evidence’ is to mean as only where

strong and cogent evidence occurs against a person from the evidence led

before the Court that such power should be exercised. It is not to be

exercised in a casual or a cavalier manner. The prima facie opinion which is

to be formed requires stronger evidence than mere probability of his

complicity.

11. In the present case, at the very outset, a question that will have

to be addressed is whether there has been concealment of fact, which would

7 of 10
24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -8-

not entitle the petitioner to any relief. Admittedly, an application under

Section 319 Cr.P.C. seeking to summon respondent No. 2 was dismissed by

the JMIC which order was confirmed by the High Court. Another

application was filed under section 319 Cr.P.C after the dismissal of the 1st

application without making any mention of the previous application filed.

Both the Courts below held that there is concealment of fact, which has

been challenged by the counsel for the petitioner who argues that the said

application was part of the same proceedings and would not constitute any

concealment. He relies upon a judgment rendered in Criminal Contempt

No. 9 Of 2009, Court on Its Own Motion Versus Omit Kumar Jan And

Another, 2009 (3) R.C.R. (Criminal) 331 in support of the argument that in

case there is no details of the earlier application it would not amount to

fraud or concealment. This argument is not sustainable as the judgment

relied upon is distinguishable on facts. In the judgment referred to above, an

application had been preferred under section 311 Cr.P.C. to adduce

additional evidence. The 1st application preferred was to place on record

additional documents and while submitting the 2nd application the applicant

sought permission for recalling a defence witness. The Division Bench held

that if in the later application, the details of the earlier applications are not

mentioned, it would not amount to fraud because the cause of action and

the releifs sought are entirely different’. In the case in hand, an application

has been moved to summon respondent No. 2 Manoj as an additional

accused without making any mention that a previous application already

stood dismissed. The ground for summoning respondent No. 2 was on the

grounds of cruelty, which is a similar ground in the instant application. In

8 of 10
24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -9-

such a situation, the petitioner was duty bound to disclose the dismissal of

the earlier application since it is expected of the parties to come to Court

with clean hands. Therefore this Court has no hesitation in holding that

there is concealment of facts and there is no infirmity in the decision taken

by the Courts below.

12. Even otherwise, on merits, this Court is of the view that the

petitioner herein is not entitled to any relief sought. The petitioner is

seeking to place reliance upon testimony of Dr. Mukesh Khattar, PW-21,

and medical prescription Exhibit PW-21/A, evidence gathered during trial.

The testimony of Dr. Mukesh Khattar was recorded on 24.10.2014, prior to

the date of decision in CRM-M-35582-2015 decided on 05.02.2016. It is

true that additional evidence and an accused can be summoned at any stage

of the case, but it is equally true that there should be no misuse of these

provisions. The testimony of Dr. Mukesh Khattar recorded on 24.10.2014

was well within the knowledge of the petitioner, who, at that juncture, had

the opportunity of placing the evidence on the record and seeking an order

under Section 319 Cr.P.C. The petitioner slept over the matter and cannot be

permitted to rake up this issue afresh after a lapse of 3 years.

13. Another argument has been raised by the counsel for the

respondent that there is no averment in the FIR regarding respondent No. 2

having actively caused hurt to the complainant and only general allegations

have been raised therein regarding harassment and demand of dowry and

now the petitioner is seeking to improve upon her case. This argument is

sustainable. On investigation, the police did not find any merit in the

allegations against respondent No. 2. Counsel for the petitioner seeks to

place reliance upon document (with this petition) Annexure P-4 dated

9 of 10
24-12-2017 07:10:39 :::
CRM-M-8317-2017 (OM) -10-

26.12.2007 which is a complaint filed with the Police Station Civil Lines,

Sector 15, Gurugram regarding an occurrence dated 26.12.2007, alleging

that respondent No. 2 had given a slap on the petitioner’s ear. Admittedly

this complaint as on date has not been exhibited and, therefore, no reliance

can be placed upon the said document.

14. This Court is of the opinion that there has been concealment of

fact which would dis-entitle the petitioner herein to any relief, and on merits

there is no new evidence brought on the record after the dismissal of the 1st

application filed seeking to summon respondent No. 2 as an additional

accused to allow the application . Therefore in view of the above discussion,

this Court finds no ground to interfere in the well reasoned orders passed by

the Courts below.

15. Before parting with this judgment, it is noticed that by

Administrative orders dated 08.08.2016 and 22.10.2016, the Courts were

directed to decide the case within two months. While dismissing the

revision petition, it is again directed that the proceedings be concluded

within two months on receipt of certified copy of the order.

16. Revision petition stands dismissed.

22.12.2017 (JAISHREE THAKUR)
Waseem Ansari JUDGE

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

10 of 10
24-12-2017 07:10:39 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh