MITHLESH KUMARI Vs. STATE OF HARYANA

JUDGEMENT

(1.) ON the night intervening 24th and 25th October, 1984, Bal Krishan committed suicide. From the body of Bal Krishan, two letters, dated October 22 and October 23, 1987 were recovered. These letters indicated that his wife Veena was being used as prostitute under the influence and pressure of her father Suraj Parkash, her mother Bhagwanti, their landlord Pala and Mithlesh, wife of Gopal Krishan, sister of Veena. The case was investigated by the police and report under Section 173, Code of Criminal Procedure was submitted against Suraj Parkash, Veena and Bhagwanti. After these accused were committed to the Court of Sessions, an application was filed that on the basis of those letters, Pala and Mithlesh Kumari should also be summoned to face trial along with others. The said application was allowed by the Additional Sessions Judge on April 6, 1988. Vide order dated June 13, 1988, the Additional Sessions Judge came to the conclusion that there were grounds for proceeding against the five accused aforesaid who were ordered to be charged under Section 306, Indian Penal Code. These two orders are being challenged by Mithlesh Kumari in this revision petition.

(2.) THE contention of learned Counsel for the Petitioner is that without recording evidence, Additional Sessions Judge had no jurisdiction to order summoning of the Petitioner to face trial. There is force in this contention. Section 319(1), Criminal Procedure Code, reads as under:

(3.) IN the present case, the trial as such has not proceeded. The evidence is yet to be recorded at the trial. What was before the Court was a report submitted under Section 173, Code of Criminal Procedure accompanied by statements of the witnesses recorded under Section 161, Criminal Procedure Code, and documents, the two letters, referred to above. Such statements recorded under Section 161, Criminal Procedure Code, or the documents produced cannot be considered as evidence led during the trial to invoke the powers under Section 319(1) of the Code of Criminal Procedure. At this stage, it may be stated that such material may be considered for the purposes of framing charge as is clear from Sections 226, 227 and 228 of the Code of Criminal Procedure. These provisions relate to trial before the Court of Sessions. While opening the prosecution case, the Public Prosecutor is to describe the charge brought against the accused and to state' by what evidence he proposes to prove the guilt of the accused. It is upon consideration of the record of the case and the documents submitted therewith that if the Court finds no sufficient ground to proceed against the accused, the Court shall discharge the accused, otherwise the Court is to frame the charge. These provisions are applicable to the accused who are before the Court. It is thereafter that when evidence is recorded during the trial that provisions of Section 319, Code of Criminal Procedure would come into play that the Court may summon any other person to stand trial with the persons already accused before the Court if from the evidence led it appears to the Court that such person has committed an offence. Since in the present case the Court had not recorded any evidence, resort to the provisions of Section 319(1), Criminal Procedure Code, could not be had simply on the application filed by the Public Prosecutor or the complainant. Order dated April 6, 1988 summoning Mithlesh accused to face trial being illegal is set aside. With consequence the order framing charge against Mithlesh accused dated June 13, 1988 to that extent is also set aside, while accepting the revision petition.