MEENA DEVI Vs. NARENDER

JUDGEMENT

(1.) THIS petition filed under Section 401 of the Code of Criminal Procedure, 1973 by the prosecutrix Smt. Meena Devi challenges order dated 6.8.2003 passed by the learned Additional Sessions Judge, Jhajjar dismissing the application of the prosecution to summon Narender, Dhari, Sushila, Kamlesh and Rakesh Kumar under Section 319 Criminal Procedure Code

(2.) BRIEF facts of the case for deciding the controversy raised in the instant petition are that Meena Devi prosecutrix-petitioner was married to one Parshotam S/o Kapoor Singh on 5.12.1999. She lodged an FIR No. 465 dated 12.10.2000 P.S. Jhajjar under Sections 498-A, 406/376 IPC revealing allegations that sufficient dowry was given by her parents. Her husband is impotent and on 11.12.1999 at about 12.00 in the night, the brother of her husband namely one Darshan raped her against her wishes but with the consent of her husband Parshotam. Later on she was assured by all members of the family that she would be married to Darshan. No report was lodged and for that reason no complaint with regard to her rape was lodged. It is further alleged that her in-laws are demanding a scooter and golden chain for every member of the family to keep her at the matrimonial home. They have also expressed the desire that her sister be married to Darshan. In this way she was to continue to be legally wedded wife of Parshotam and she would have baby. She has also named her mother-in-law Angoori, brother-in-law Rajinder and his wife Maya, her other brother-in-law Narender and Dhari @ Suresh, her brother-in-law Darshan, sister's in-law Sushila and Kamlesh and husband of Kamlesh namely Rakesh for harassing her on account of bringing less dowry. The police investigated the allegations and put up the challan against the husband of the prosecutrix-petitioner. Parshottam, her brother-in-law Darshan, mother-in-law, Angoori, brother-in-law Rajinder and his wife Maya. However, Narender and his wife Dhari, Sushila, Kamlesh and her husband Rakesh were kept in column No. 2 as no evidence was found against them. However, an application was filed under Section 319 Criminal Procedure Code requesting the trial Court to summon Narender, Dhari, Sushila, Kamlesh and Rakesh to face trial under Sections 498-A, 406 and 376 IPC alongwith other co-accused. The learned Additional Sessions Judge, Jhajjar, dismissed the application by observing as under:

(3.) HAVING heard the learned counsel and perusing the order passed by the learned Additional Sessions Judge as well as the FIR, I am of the considered view that no interference is called for as the impugned order does not suffer from any legal infirmity. The learned Sessions Judge has rightly come to the conclusion that there is no evidence on record inspiring the confidence that there are reasonable prospecs of conviction of Narender, Dhari, Sushila, Kamlesh and Rakesh Kumar specially when no evidence has been found against them. It appears to be well settled that unless there are reasonable prospects of conviction, the powers under Section 319 Cr.P.C. for summoning the additional accused for trial should not be used. In the case of Michael Machado and another v. Central Bureau of Investigation and another, 2000(3) SCC 262 : 2000(2) RCR(Crl.) 75 (SC) the Supreme Court has taken the view that on the basis of mere suspicion, powers under Section 319 Criminal Procedure Code cannot be used. In this regard, the observation of the Supreme Court reads as under :-