DHARAM PAL Vs. STATE

JUDGEMENT

(1.) Being aggrieved by the order of learned AdditionalSessions Judge summoning the petitioners to face trial under Sections 498-A/304-B, IPC, the petitioners have filed this petition for quashing the order ofsummoning alleging inter alia that, firstly, there was no evidence before learnedAdditional Sessions Judge to form an opinion that a prima facie case had been madeout against the petitioners and secondly, even assuming such a material wasavailable on the police record, the Additional Sessions Judge could not summon thepetitioners by invoking powers under Section 319 of the Code of Criminal Procedure (in short referred to as "the Code") without recording evidence during trial.Before dealing with the contentions of the respective parties, let me first give a fewfacts which are relevant for deciding this petition.

(2.) One Kusum, the deceased, was married to Radhe Shyam on 16/04/1990. The petitioners are the brothers of Radhe Shyam. The petitioners liveseparately from Radhe Shyam and have their separate business. On 19/03/1994 Kusum died in mysterious circumstances and on post-mortem having beenconducted, the cause of death was found to be vasovagal shock consequent to thepressure on the neck. The Sub-Divisional Magistrate after holding the inquestproceedings on 22/03/1994 recommended a case to be registered againstRadhe Shyam and his mother under the relevant provisions of law. The FIR wasregistered against Radhe Shyam alone for his having committed an offencepunishable undersections 498-A/304-B/34, IPC. During investigation it appearedto the Investigating Authority that a case under Section 302 was also mad- out andthe mother of Radhe Shyam was also involved in the commission of crime. ChargeSheet was, accordingly, filed in the Court of the Metropolitan Magistrate againstRadhe Shyam and his mother for their having allegedly committed an offencepunishable under Sections 498-A/302/304-B/34, IPC. None of the petitioners wasfound to be involved in the commission of crime and their names were not includedin the charge sheet. After taking cognizance of the offence, the MetropolitanMagistrate committed the accused to the Court of Sessions. It was at that stage thatan application under Section 319 of the Code of Criminal Procedure was filed by thecomplainant for summoning the petitioners aswell for facing trial. By the impugnedorder, learned Additional Sessions Judge held that he was unable to find anythingin the statement of witnesses which could distinguish the case of the accused RadheShyam and Ram Pyari from the case of the petitioners and he, therefore, summonedthe petitioners to face trial under Sections 498-A/304-B of the Indian Penal Code.

(3.) It is contended by Mr. Sud, learned Counsel for the petitioners, that at thetime of summoning a person under Section 319 of the Code, the Court must forman opinion on the basis of the evidence available on record at that stage that a primafade case was made out against the persons who were going to be summoned. Thisevidence, according to Mr. Sud, must come before the Court during trial and theCourt cannot rely upon the statements of the witnesses recorded by the police beforefiling the charge sheet for purposes of summoning another person under Section 319of the Code. It is also the contention of Mr. Sud that even assuming that the Courthas the power to summon any person to face trial alongwith the accused who havealready been named in the charge sheet, learned Additional Sessions Judge couldnot, in the facts and circumstances of this case, summon the petitioners as thematerial before him was not sufficient to enable him to form an opinion that a primafade case had been made out against the petitioners.