Kavita Kumari vs State & Ors.
2013 Latest Caselaw 744 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Crl.M.C. No. 696/2010

+                                     Date of Decision: 14th February, 2013


#      KAVITA KUMARI                                              ....Petitioner
!                                           Through: Mr. S.K. Bhalla, Advocate

                             Versus

$      STATE & ORS.                                          ...Respondents
                                   Through: Mr. M.N. Dudeja, APP for State
                                        Ms. Kamlesh Shambharwal, Advocate
                                         for R-2 & R-3

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                             ORDER

P.K.BHASIN, J:

This petition has been filed by the petitioner-complainant under Section 482 of the Code of Criminal Procedure,1973('Cr.P.C.' in short) and Article 227 of the Constitution of India for setting aside the order dated 21st January, 2010 passed by the learned Additional Sessions Judge whereby the revision petition filed by the petitioner against the order dated 4th August, 2009 of the learned Metropolitan Magistrate dismissing petitioner's application under Section 319 Cr.P.C. was rejected.

2. Background of the case may briefly be stated. The petitioner got married to the respondent no. 2 herein on 16.04.1994. The petitioner's grievance had been that she was being treated with cruelty for bringing

insufficient dowry and she had been beaten up also by her in-laws many times. On 29.9.1998, the petitioner alleged in her complaint after referring to an incident of assault on her by her in-laws on 16th February,1998, her husband(respondent no.2 herein), father-in-law, mother-in-law and brother- in-law(respondent no.3 herein) again tried to end her life by severely beating her. Her mother-in-law had allegedly caught hold of her while her father-in- law, husband and brother-in-law had severely beaten her with iron rods and fists. The petitioner got herself medically examined from Ram Manohar Lohia Hospital vide MLC No. E/120090/98. The police, however, did not register her complaint against these persons and so she was forced to file a complaint dated 4th May,2009 before the Metropolitan Magistrate and in that complaint she also moved an application under Section 156(3) Cr. P.C. for directing the police to register an FIR against her in-laws. Then under the orders of the Magistrate passed under Section 156(3) Cr. P.C. the police registered the FIR No. 306/2000 under Sections 323/324 and investigated the matter and charge-sheeted petitioner's husband , father-in-law, mother- in-law and brother-in-law under Section 323/324/34 of the Indian Penal Code ('IPC' for short).

3. The learned Magistrate in whose Court the police had filed the charge-sheet discharged all the four accused persons vide order dated 11th June, 2003 holding that the offence under Section 324 IPC was not made out and even though offence under Section 323 IPC was made out but the accused could not be tried since cognizance of that offence could not have been taken beyond the prescribed period of limitation for this offence. The petitioner-complainant challenged that order before the Sessions Court by filing a revision petition. The revisional Court maintained the Magistrate's

order of discharge in respect of the husband and brother-in-law of the petitioner-complainant(respondents no. 2 and 3 herein) while discharge of her father-in-law and mother-in-law was set aside and they were ordered to be charged under Section 323/34 IPC vide order dated 12 th March, 2003. It was held that there was no evidence of respondents no. 2 and 3 herein having shared common intention with their parents in causing injuries to the petitioner-complainant. That order of the revisional Court was not challenged further by the petitioner-complainant and so it attained finality. Thereafter, the trial of the petitioner's father-in-law and mother-in-law started in the Court of the Metropolitan Magistrate.

4. During the trial the petitioner-complainant was examined as a prosecution witness(PW-1) and in her statement before the Court she reiterated on oath the allegations which she had earlier levelled against all the four accused persons, including the two discharged accused, respondents no. 2 and 3 herein. In view of the petitioner-complainant having reiterated the allegations against the two discharged accused persons as contained in FIR also the petitioner moved an application dated 30th June, 2005 under Section 319 Cr.P.C. in the trial Court for summoning them also to face trial alongwith her father-in-law and mother-in-law. That application was dismissed by the learned Magistrate vide order dated 4th August,2009 on the ground that no new evidence had come on record against the two discharged accused and the complainant had reiterated whatever she had earlier alleged against them in her complaint based on which no case for their trial was earlier found to be made out. The Sessions Court in the revision petition filed by the petitioner vide its order dated 21st January,2010 refused to reverse that order of the trial Court and concurred with the reasoning of the

trial Court for not summoning the two discharged accused, respondents no. 2 and 3 herein.

5. The petitioner-complainant then challenged the revisional Court's order by filing the present petition.

6. Relying heavily upon a judgment of the Hon'ble Supreme Court in "Kishun Singh vs State of Bihar", 1993(1) Crimes 494, which has been noted by the revisional Court also in the impugned order, the learned counsel for the petitioner submitted that even though the respondents no.2 and 3 herein had earlier been discharged they could still be summoned as accused by the trial Court in exercise of its powers under Section 319 Cr.P.C. since the petitioner had in her evidence in Court had deposed on oath about the allegations which she had earlier made against the accused and on the basis of that evidence respondents no.2 and 3 could be summoned.

7. However, in my view the said judgment relied upon by the petitioner's counsel is of no advantage to her since in that case the question whether an accused who at one stage was charge-sheeted by the police but was discharged by the Court at the stage of charge after finding no case to be made out could again be summoned under Section 319 Cr.P.C. on the same material/allegations which were earlier not found to be sufficient for framing of charge was not the subject matter of that case. The question before the Supreme Court was whether Section 319 Cr.P.C. could be invoked against anyone before evidence is adduced during the trial and it was held that unless some evidence is actually recorded during the trial Section 319 Cr.P.C. cannot be invoked. The question involved in the present

case is, however, squarely covered by another decision of the Hon'ble Supreme Court in the case of "Sohan Lal vs State of Rajasthan", AIR 1990 Supreme Court 2158. In the said case also some discharged accused were sought to be summoned under Section 319 Cr. P.C. and were summoned by the trial Court and that order was upheld by the High Court. But it was held by the Supreme Court that if some accused is charge-sheeted and then discharged Section 319 Cr. P.C. will not apply to him and consequently the order of the trial Court summoning the discharged accused and the order of the High Court affirming that order were set aside.

8. So, there is no scope of any interference in the present case with the orders of the two Courts below which have refused to exercise discretionary power under Section 319 Cr.P.C. This petition is, therefore, dismissed.

P.K. BHASIN, J

FEBRUARY 14, 2013