Punjab-Haryana High Court
Balwinder Kaur vs State Of Haryana And Ors on 29 July, 2022
221 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-33503-2016
Date of decision : 29.07.2022
Balwinder Kaur .....Petitioner
versus
State of Haryana and others ..... Respondents
CORAM : HON'BLE MR. JUSTICE RAJESH BHARDWAJ
***
Present :- Mr. Naresh Jain, Advocate
for the petitioner.
Mr. Kirpal Singh Thakur, AAG, Haryana.
Mr. M.S. Batth, Advocate
for respondents No.2 to 4.
***
RAJESH BHARDWAJ, J. (Oral)
Petitioner has approached this Court impugning the order
dated 22.04.2016 passed by the learned Additional Sessions Judge, Sirsa
whereby the order dated 02.05.2015 passed by Sub Divisional Judicial
Magistrate, Dabwali, District Sirsa, Haryana dismissing the application
filed by the petitioner-complainant under Section 319 Cr.P.C. for
summoning respondents No.2 to 4 to face the trial along with the co-
accused was upheld.
As per facts of the case, the present FIR was lodged by the
petitioner-complainant wherein it was alleged that on 07.05.2014 at about
04:30 PM, the accused gave beating to the complainant and outraged her
modesty. Thereafter, the supplementary statement of the complainant was
also recorded on 09.05.2014. After a thorough investigation, the challan
was presented only against accused Satpal Singh whereas, all the three
accused i.e. respondents No.2 to 4 were kept in Column No.2. During the
course of trial, petitioner-complainant appeared as PW-1 and recorded her
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statement on the basis of which the application under Section 319 Cr.P.C.
for summoning respondents No.2 to 4 was filed. Learned Sub Divisional
Judicial Magistrate, Dabwali after hearing counsel for the parties,
declined the same vide impugned order dated 02.05.2015. Aggrieved by
the same, petitioner filed the revision petition before the learned
Additional Sessions Judge, Sirsa. After hearing counsel for the parties,
learned Additional Sessions Judge also declined the same vide his
impugned order dated 22.04.2016. Aggrieved by both the orders,
petitioner/complainant has approached this Court by way of present
petition.
Learned counsel for the petitioner has contended that both
the Courts below have fallen in error in declining the application filed by
the petitioner under Section 319 Cr.P.C. He submits that the petitioner
throughout specifically named all the three accused and thus, their
complicity was specifically made out. However, as the investigating
agency failed to carry out a fair investigation, they were illegally kept in
Column No.2 in the charge-sheet filed. He submits that the petitioner
reiterated her allegations made in the FIR while appearing as PW-1 and
thus, there was ample evidence for summoning respondents No.2 to 4.
However, both the Courts below failed in appreciating the ample
evidence on record and illegally declined the application. He submits that
there was a dispute for the adjoining boundaries between petitioner and
the respondents and on account of the same, there was a motive with the
respondents to beat her and humiliate her.
Learned counsel for the petitioner relied upon the judgment
of Hon'ble Supreme Court in case titled as Hardeep Singh Vs. State of
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Punjab and another, 2014(1) RCR (Criminal) 623. He submits that as per
the law settled by the Hon'ble Supreme Court, there was ample evidence
on record for drawing the satisfaction more than the prima facie
satisfaction against the respondents but both the Courts below have failed
to appreciate the law settled by the Hon'ble Supreme Court and thus,
drawn a wrong conclusion in declining the application filed by the
petitioner and thus, both the orders deserve to be quashed.
Learned counsel for respondents No.2 to 4 has opposed the
submissions made by counsel for the petitioner. He submits that the
petitioner is the author of the FIR and she has falsely and frivolously
lodged the FIR to settle the boundary wall dispute between the petitioner
and the accused. He submits that the FIR was lodged by the petitioner
with a malicious intention. He submits that the petitioner after recording
the FIR made the supplementary statement with improvements and
thereafter, she at the time of appearing before the learned trial Court,
further made improvements in her statement and thus, both the Courts
below were right in declining the petition filed by the petitioner. He
further submits that a thorough investigation was carried out by the
investigating agency and all the three accused i.e. respondents No.2 to 4
were found innocent and kept in Column No.2. He submits that the
innocence of the respondents is further strengthened from the fact that the
challan was presented only against accused Satpal Singh, who after a
lengthy trial, was finally acquitted by the learned trial Court vide its order
dated 9th March, 2018. He has submitted that once the accused against
whom the investigating agencies filed the challan already stands
acquitted, the summoning of the respondents under Section 319 Cr.P.C.
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has rightly been rejected by both the Courts below.
Learned State counsel has also submitted that after
investigation, respondents No.2 to 4 were kept in Column No.2 and the
challan was presented only against Satpal Singh. He submits that the
accused Satpal Singh is acquitted vide order dated 9th March, 2018.
I have heard counsel for the parties and perused the records.
There is no gainsaying that the petitioner is the author of the
FIR and she lodged the FIR on the basis of the allegations regarding the
alleged scuffle took place between the complainant and the accused on
07.05.2014 at about 04:30 PM. The alleged occurrence took place as
accused Gurlal Singh and Khushal Singh were allegedly damaging the
boundary of their field. After a thorough investigation, respondents No.2
to 4 were declared innocent and were kept in Column No.2 whereas, the
challan was filed only against the co-accused Satpal Singh. The
petitioner-complainant appeared as PW-1 before the trial Court and
deposed again against the accused and on the basis of the same,
application under Section 319 Cr.P.C was filed. The trial Court declined
the same vide order dated 02.05.2015 and the revision filed against the
same was also dismissed by the learned Additional Sessions Judge vide
order dated 22.04.2016. A perusal of the record would show that the
petitioner-complainant gave statement before the police which is
Ex.PW1/A and thereafter, the supplementary statement was given on
09.05.2014. Perusal of both the statements would show that there are
improvements made by the petitioner in both the statements. It was stated
that Gurlal Singh and Satpal Singh torn of her shirt, however, there was
no specific injury attributed to these accused. The statement made by the
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petitioner before the trial Court is again with many improvements. It was
stated that Gurlal Singh and Satpal Singh had torn of her shirt but she did
not name the respondent Khushal Singh and Balkaran Singh as it was
mentioned in the supplementary statement. There were further
contradictions in the statement made under Section 164 Cr.P.C. The
matter was thoroughly investigated and on the basis of same, all the three
respondents i.e. respondents No.2 to 4 were found innocent. Learned
counsel for the petitioner has relied upon the judicial precedent of
Hon'ble Supreme Court in Hardeep Singh's case (supra) which is
reproduced as under:-
98. Power under Section 319 Cr.P.C. is a discretionary and an extra-
ordinary power. It is to be exercised sparingly and only in those cases
where the circumstances of the case so warrant. It is not to be exercised
because the Magistrate or the Sessions Judge is of the opinion that
some other person may also be guilty of committing that offence. Only
where strong and cogent evidence occurs against a person from the
evidence led before the court that such power should be exercised and
not in a casual and cavalier manner.
99. Thus, we hold that though only a prima facie case is to be
established from the evidence led before the court not necessarily tested
on the anvil of Cross-Examination, it requires much stronger evidence
than mere probability of his complicity. The test that has to be applied
is one which is more than prima facie case as exercised at the time of
framing of charge, but short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to conviction. In the absence of
such satisfaction, the court should refrain from exercising power under
Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if
'it appears from the evidence that any person not being the accused has
committed any offence' is clear from the words "for which such person
could be tried together with the accused." The words used are not 'for
which such person could be convicted'. There is, therefore, no scope for
the Court acting under Section 319 Cr.P.C. to form any opinion as to
the guilt of the accused.
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The law settled by the Hon'ble Supreme Court as mentioned
above does not strengthen the case of the petitioner. However, the same
justifies the view taken by both the Courts below. Perusal of the record of
the case wherein the complainant has improved her statements, justifies
the view taken by the investigating agencies in keeping the respondents
No.2 to 4 in Column No.2. As per the law laid down by the Hon'ble
Supreme Court, the satisfaction to be drawn by the Court in summoning
the respondents No.2 to 4 as co-accused should be more than the
satisfaction required at the time of framing of the charge. Besides this,
the power under Section 319 Cr.P.C. is discretionary and extraordinary in
nature which cannot be invoked in a cavalier manner. Not only this, the
only accused who was challaned by the police namely Satpal Singh has
been acquitted by the trial Court after the trial.
There is a concurrent finding of both the Courts below and
thus, keeping in view the facts and circumstances of the case on the anvil
of the law settled, this Court is of the opinion that the case in hand do not
qualify for invoking the powers by this Court under Section 319 Cr.P.C.
in favour of the petitioner. There is no infirmity in the impugned order
passed by both the Courts below. Resultantly, the petition being devoid of
any merits is hereby dismissed. Nothing said herein shall be treated as an
expression of opinion on the merits of the case.
( RAJESH BHARDWAJ )
29.07.2022 JUDGE
m. sharma
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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