SUKKHU RAIDAS Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS revision has been directed against the order dated 24.3.1998 passed by Shri P.N. Rai, the then IV Additional Sessions Judge, Banda in S.T. No. 155 of 1997 arising out of Case Crime No.324 of 1996 under sections 498-A, 306 I.P.C., P.S. Mataundh, District Banda, whereby the revisionists have been summoned to face trial in above session trial. I have heard Shri Ram Gupta, learned counsel for the revisionists, learned A.G.A. for respondent no.1 on this revision and perused the record. On perusal of record it transpires that S.T. No.155 of 1997 under sections 498-A, 306 I.P.C. arising out of Case Crime No. 324 of 1996 of P.S. Mataundh, District Banda was pending in the court of Sessions Judge, Banda, in which an application was moved by the public prosecutor on 24.3.1998 under section 319 Cr.P.C. with prayer to summon the revisionists, namely, Sukkhu Raidas, Deena, Paan Kaur, Jasodiya and Kishora for trial, against which objections were also filed on behalf the accused Babbu. The learned Sessions Judge after having heard learned counsel for the parties found that a prima facie case was made out against the revisionists for summoning them to face trial in view of the statement of prosecution witness, namely, P.W.1 Bindra Prasad.

(2.) THE learned court below on the basis of statement of above witness summoned the revisionists vide order dated 24.3.1998, aggrieved by which, the revisionists filed this revision. The learned counsel for the revisionists has contended that the learned Sessions Judge did not pass speaking order and he summoned the revisionists on the basis of statement of P.W.1, Bindra Prasad, while he nowhere stated that there was demand of dowry from the side of revisionists, after the alleged panchayat was convened and thus no case under section 498-A I.P.C. was made out against them. It is further contended that the deceased herself stated in her dying declaration that her husband was demanding Rs.10,000/- as dowry and when she refused to arrange the said amount, then her husband left the house and her mother-in-law set her on fire at about 4.00 P.M. and thus from her dying declaration no allegation of harassment was levelled against the revisionists and the police had legally filed final report against the revisionists. There was allegation against husband, who might be convicted on the basis of important piece of evidence, there could not be any possibility of conviction of the revisionists but the prosecution moved the said application on the basis of statement of P.W.1, Bindra Prasad, who was not crossexamined by learned counsel for the accused.

(3.) THE learned counsel for the revisionists has further contended that because of torture of the deceased's husband, namely, Babbu, she committed suicide by setting herself on fire and a case under section 498-A, 306 I.P.C. was made out against her husband Babbu. The learned counsel for the revisionists has further contended that the power to summon an accused is an extraordinary power conferred on the Court. It is discretionary and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. Though an order under section 319 Cr.P.C. summoning a person can be made on fulfilment of the conditions stipulated therein even when the proceedings had earlier been quashed. In the present case, P.W.1, Bindra Prasad was not crossexamined and no opportunity to cross-examine this witness was afforded by the learned court below to the defence counsel as in view of statement nothing was mentioned by the court below to this effect that an opportunity was afforded to cross- examine this witness. This witness, in his statement, stated that the victim disclosed before him that on account of non-fulfilment of demand of dowry her husband, father-in-law, mother-in-law and other family members used to harass and belabour her, but this witness was not afforded an opportunity to be cross-examined by the court below, due to which these revisionists could not be summoned to face trial in exercise of power under section 319 Cr.P.C. in view of above propositions of law laid down by the Honble Apex Court. Moreover, the learned Additional Sessions Judge passed cryptic order dated 24.3.1998 without mentioning the averments made by witness in his statement and reasons for summoning the revisionists, the victim in her dying declaration levelled allegations of harassment against the husband only and the police had legally and rightly filed final report against the revisionists.