Punjab-Haryana High Court
Amandeep Kaur vs State Of Punjab And Another on 23 December, 2022
CRM-M-46198-2022 (O & M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-46198-2022 (O & M)
Date of decision:23.12.2022
Amandeep Kaur .... Petitioner
V/s
State of Punjab and anr. ...Respondents
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Ms. Monita Mehta, Advocate, for the petitioner.
*****
JASJIT SINGH BEDI, J. (Oral)
The prayer in the present petition under Section 482 Cr.P.C. is
for setting aside the impugned order dated 03.09.2022 passed by the
Sessions Judge, Shaheed Bhagat Singh Nagar vide which the order dated
28.01.2022 passed by the Chief Judicial Magistrate, Shaheed Bhagat Singh
Nagar summoning the petitioner under Section 319 Cr.P.C. has been upheld
in case FIR No.45 dated 12.04.2017 under Sections 406, 420 IPC at Police
Station City Nawanshahr, District Shaheed Bhagat Singh Nagar.
2. The brief facts of the case are that FIR No.45 dated 12.04.2017
under Sections 406, 420 IPC, Police Station City Nawanshahr, District
Shaheed Bhagat Singh Nagar, came to be registered against Lalit Pawar and
Amandeep Kaur (petitioner) wife of Lalit Pawar with the allegations that
Lalit Pawar had opened an office at Phillaur to send people abroad. He had
promised the petitioner that he would settle his family permanently in
Canada for a sum of Rs.25 lacs. For the said purpose, money, passport and
education certificates were taken by Lalit Pawar who informed the
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complainant that it would take 2-2 ½ years to get a permanent residence
Visa. Over a period of time, he alongwith his wife (petitioner) swindled
him of Rs.22,50,000/- on different dates. They received the money but did
not obtain a permanent residence Visa for him in Canada. On repeated
requests for return of the money, a cheque was issued by Lalit Pawar for a
sum of Rs.19 lacs dated 30.12.2016. It was also promised that the remaining
amount of Rs.3,50,000/- would be refunded in cash. A compromise was
arrived at. However, the bank payment was stopped and the cheque was
dishonoured. The cash amount of Rs.3,50,000/- was also not given to him
(complainant). The petitioner also abused him. Once again, an assurance
was given to return the money but the same was not done.
Based on the aforementioned allegations, the FIR was registered and
pursuant to the registration, an investigation was conducted in which the
petitioner was exonerated and a report under Section 173(2) Cr.P.C. was
submitted only against Lalit Pawar. A copy of the report under Section
173(2) Cr.P.C. dated 11.10.2018 is attached herewith as Annexure P-6.
3. Thereafter, during the course of Trial, an application under
Section 319 Cr.P.C. was moved on 10.02.2020 (Annexure P-4) to summon
the petitioner as an additional accused. The said application was allowed
and the petitioner was ordered to be summoned by the Court of Chief
Judicial Magistrate vide order dated 28.01.2022. A copy of the said order is
attached as Annexure P-1. The aforementioned order was challenged and the
revision petition was dismissed by the Court of Sessions Judge, Shaheed
Bhagat Singh Nagar vide impugned order dated 03.09.2022. Thereafter, the
present petition has been filed.
4. During the course of the hearing, the primary contention raised
by the petitioner was that there had been a significant improvement in the
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statement of the complainant and witnesses recorded in the Court from their
statements recorded during the course of the investigation. Therefore, vide
order dated 10.10.2022, the learned counsel for the petitioner was directed to
place on record the depositions of PW-1/Daljit Singh,PW-2/Kiran and PW-
3/Gurmit Singh (complainant) and the same have been placed on record as
(Annexures P-7, P-8 and P-9) vide CRM-38778-2022.
5. The matter has come up for hearing today.
6. The learned counsel for the petitioner contends that a perusal of
the FIR would reveal that there are no specific allegations against the
petitioner. In fact, after a detailed investigation, the petitioner was
exonerated. Subsequently, during the course of the Trial, the statements of
the prosecution witnesses were record wherein they have significantly
improved their versions. She contends that the improved version cannot be
looked at for the summoning of the petitioner who is otherwise a lady. She,
thus, contends that the impugned orders dated 03.09.2022 passed by the
Sessions Judge, Shaheed Bhagat Singh Nagar and judgment and order dated
28.01.2022 passed by the Chief Judicial Magistrate, Shaheed Bhagat Singh
Nagar are liable to be set aside and the petitioner ought to be discharged.
7. I have heard the learned counsel for the petitioner.
8. Before proceeding further, it would be apposite to refer to the
provisions of Section 319 Cr.P.C. The same are reproduced hereinbelow:-
"319 Cr.P.C. -Power to proceed against other persons appearing to be
guilty of offence.-
(1) Where, in the course of any inquiry into, or trial of, an offence, it
appears from the evidence that any person not being the accused has
committed any offence for which such person could be tried together
with the accused, the Court may proceed against such person for the
offence which he appears to have committed.
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(2) Where such person is not attending the Court, he may be arrested
or summoned, as the circumstances of the case may require, for the
purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon
a summons, may be detained by such Court for the purpose of the
inquiry into, or trial of, the offence which he appears to have
committed.
(4) Where the Court proceeds against any person under sub- section
(1), then-
(a) the proceedings in respect of such person shall be
commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed
as if such person had been an accused person when the Court
took cognizance of the offence upon which the inquiry or trial
was commenced."
9. The Hon'ble Supreme Court of India in 'Manjeet Singh versus
State of Haryana & others, 2021(4) RCR (Criminal) 25', held as under:-
"13. The ratio of the aforesaid decisions on the scope and am-
bit of the powers of the Court under section 319 CrPC, 1973
can be summarized as under:
(i) That while exercising the powers under
section 319 CrPC, 1973 and to summon the persons not
charge-sheeted, the entire effort is not to allow the real
perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the
criminal administration of justice works properly;
(iii) the law has been properly codified and modified by
the legislature under the CrPC indicating as to how the
courts should proceed to ultimately find out the truth so
that the innocent does not get punished but at the same
time, the guilty are brought to book under the law;
(iv) to discharge duty of the court to find out the real
truth and to ensure that the guilty does not go
unpunished;
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(v) where the investigating agency for any reason does
not array one of the real culprits as an accused, the court
is not powerless in calling the said accused to face trial;
(vi) section 319 CrPC, 1973 allows the court to proceed
against any person who is not an accused in a case
before it;
(vii) the court is the sole repository of justice and a duty
is cast upon it to uphold the rule of law and, therefore, it
will be inappropriate to deny the existence of such
powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at times,
get away by manipulating the investigating and/or the
prosecuting agency;
(viii) section 319 CrPC, 1973 is an enabling provision
empowering the court to take appropriate steps for
proceeding against any person not being an accused for
also having committed the offence under trial;
(ix) the power under section 319(1) CrPC, 1973 can be
exercised at any stage after the charge-sheet is filed and
before the pronouncement of judgment, except during the
stage of Sections 207 / 208 CrPC, committal, etc. which
is only a pretrial stage intended to put the process into
motion;
(x) the court can exercise the power under
section 319 CrPC, 1973 only after the trial proceeds and
commences with the recording of the evidence;
(xi) the word "evidence" in section 319 CrPC, 1973
means only such evidence as is made before the court, in
relation to statements, and as produced before the court,
in relation to documents;
(xii) it is only such evidence that can be taken into
account by the Magistrate or the court to decide whether
the power under section 319 CrPC, 1973 is to be
exercised and not on the basis of material collected
during the investigation;
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(xiii) if the Magistrate/court is convinced even on the
basis of evidence appearing in examination-in-chief, it
can exercise the power under section 319 CrPC, 1973
and can proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the
basis of evidence appearing in examination-in-chief,
powers under section 319 CrPC, 1973 can be exercised;
(xv) that power under section 319 CrPC, 1973 can be
exercised even at the stage of completion of examination-
in-chief and the court need not has to wait till the said
evidence is tested on cross-examination;
(xvi) even in a case where the stage of giving opportunity
to the complainant to file a protest petition urging upon
the trial court to summon other persons as well who were
named in FIR but not implicated in the charge-sheet has
gone, in that case also, the Court is still not powerless by
virtue of section 319 CrPC, 1973 and even those persons
named in FIR but not implicated in the charge-sheet can
be summoned to face the trial, provided during the trial
some evidence surfaces against the proposed accused
(may be in the form of examination-in-chief of the
prosecution witnesses);
(xvii) while exercising the powers under
section 319 CrPC, 1973 the Court is not required and/or
justified in appreciating the deposition/evidence of the
prosecution witnesses on merits which is required to be
done during the trial".
10. Coming back to the facts of the present case, a perusal of the
complaint (Annexure P-2) which led to the registration of the FIR would
show that the petitioner accompanied her husband and main accused Lalit
Pawar on different dates when the amount was paid by the complainant-
Gurmit Singh to Lalit Pawar. It has been specifically mentioned in the
complaint/FIR that a cheque of Rs.19 lacs was issued and a compromise was
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arrived at the instance of both the accused, though, a cheque has been
admittedly signed by one of the accused. The petitioner also abused the
complainant which also shows prima facie culpability. The depositions of
PWs No.1 to 3, namely, Daljit Kaur, Kiran and Gurmit Singh, are categoric
as to the role played by the petitioner. In fact, she has held out to the com-
plainant that she was working as a travel agent with her husband-Lalit
Pawar. Merely, because no payment had been made in the account of the
petitioner or that the cheque was not signed by her, did not, in any manner,
detract her from her prima facie culpability at this stage.
11. Keeping in view the aforementioned facts and circumstances, it
can be clearly opined at least at this stage that there were reasonable
prospects of the conviction of the petitioner in view of the evidence on
record, for which she ought to be tried as an additional accused alongwith
her husband-Lalit Pawar.
12. In view of the above, I find no merit in the present petition.
Therefore, the same is dismissed.
( JASJIT SINGH BEDI)
JUDGE
December 23, 2022
Sukhpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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