CNR No.HRSI03012876-2016 CIS No.

CHI-767/2016

State Vs. Shekhar Gupta

Present: Shri Baljit Singh, Assistant Public Prosecutor for State assisted by
Shri Dheeraj Jain, Advocate.
Accused on bail with Shri J.D Garg, Advocate.

ORDER :

This order shall dispose of an application moved by complainant

under Section 319 of Code of Criminal Procedure for summoning of Anil

Gupta son of Sh. Sadhu Ram and Kusum Gupta wife of Anil Kumar, as

additional accused.

2. Briefly, it is submitted in the application that the name of the

accused Anil Gupta, Kusum Gupta and Preeti Gupta and their mis-deeds have

been mentioned in detail in the FIR. That the complainant has also named

them in her statement recorded before the court. That the complainant has

specifically stated that along with the accused already facing trial, these

persons have also participated in the act of physical and mental cruelty as well

as demand of dowry. However, the police did not challan the above-mentioned

persons as accused. It is, therefore, prayed that the above named persons may

kindly be summoned as additional accused to face trial.

3. No reply was filed. However, learned counsel for the accused

opposed the application of complainant orally.

Pooja Singla,
Chief Judicial Magistrate,
Sirsa,UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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4. That after hearing the learned counsel for both the sides, the then

learned ACJM, Sirsa vide order dated 11.01.2022 had allowed the application

qua accused Anil Gupta and Kusum Gupta. Aggrieved with the said order,

accused Anil Gupta and Kusum Gupta had preferred criminal revision before

learned Addl. Sessions Judge, Sirsa, who vide order dated 19.02.2022 accepted

the revision petition and set aside the order dated 11.01.2022 with direction to

the trial Court to reconsider the application under Section 319 Cr.P.C. in view

of discussion made therein.

5. Firstly, it is important to look into the observations made by the

learned Additional Sessions Judge, Sirsa in the said order from Para no. 9 to

Para No. 18, which is as under :-

“9. Before commenting on the merits, I will like to refer the

case M/s Pepsi Foods Ltd. Vs Special Judicial Magistrate reported as
1997 (4) Recent Criminal Reports page 761, it was held by Hon'ble
Supreme Court that:
“summoning of the accused is a serious matter and therefore,
order of the Magistrate summoning the accused should reflect application
of judicial mind. It was further held in the said authority that the criminal
law can not be set into motion as a matter of course. It is not that the
complainant has to bring only two witnesses to support his allegations in
the complaint to have the criminal law set into motion and the order of the
Magistrate summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto. It was further

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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held by the court that the Magistrate has to examine the nature of
allegations made in the complaint and the evidence, both oral and
documentary. In support thereof and that would be sufficient for the
complainant to succeed in bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the time of recording of
preliminary evidence before summoning of the accused.”

10. The object of revisional jurisdiction under criminal law is

to cater upon superior court. The kind of partial or summary jurisdiction
in order to correct failure or miscarriage of justice. No doubt the court
has to find illegality and impropriety of the findings.
11. After hearing the rival contention of both the learned
counsel for parties and perusal of record it has been observed by this
Court that the present FIR was got lodged by complainant Deepika
against Shekhar Gupta, Anil Gupta, Kusum Gupta and Preeti Mittal.
During investigation, Anil Gupta, Kusum Gupta and Preeti Mittal were
found innocent and they were not challaned. After the evidence of PW1
Deepika Gupta, the prosecution has filed an application under Section
319 Cr.P.C for summoning of proposed accused and learned trial Court
has partly allowed the above said application for summoning of accused
Anil Gupta and Kusum Gupta for facing the trial before the Court but
learned trial court has dismissed the above said application qua proposed
accused Preeti Mittal. The grievance of the accused-revisionist is that
complainant Deepika Gupta has earlier moved an application against the
accused persons before Women Cell and that matter was compromised
on 12.03.2016 after recording the statement of complainant Deepika and
the said statement is Ex.DA but learned trial Court has given the

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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weightage of the examination-in-chief of PW1 Deepika and ignored the

cross-examination of above said witness and the accused-revisionist
were wrongly summoned by the learned trial Court.
12. The legal proposition with respect to exercising the
jurisdiction of court u/s.319 Cr.P.C stands recently settled by the
Constitutional Bench in a case reported as Hardeep Singh vs State of
Punjab & Ors 2014 (1) RCR (Criminal) 623 and in the cited case
Hon'ble Apex Court formulated five questions and answered the same in
para no.110 of the Judgment. For facility the reference to para no.110 of
the judgment of said case is juxtaposed herein under :-
“Q.1 What is the stage at which power under Section 319 Cr.P.C.
can be exercised ?
AND

Q.III Whether the word “evidence” used in Section 319(1) Cr.PC

has been used in a comprehensive sense and includes the evidence
collected during investigation or the word “evidence” is limited to
the evidence recorded during trial ?

A. In Dharam Pal's case, the Constitution Bench has already held

that after committal, cognizance of an offence can be taken against a
person not named as an accused but against whom materials are
available from the papers filed by the police after completion of
investigation. Such cognizance can be taken under Section 193
Cr.PC and the Sessions Judge need not wait till 'evidence' under
Section 319 Cr.PC becomes available for summoning an additional
accused. ? Section 319 Cr.PC, significantly, uses two expressions
that have to be taken note of i.e. (1)Inquiry (2) Trial. As a trial
commences after framing of charge, an inquiry can only be
understood to be a pre-trial inquiry. Inquiries under Sections
200,201, 202 Cr.PC ; and under Section 398 Cr.P.C are species of

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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the inquiry contemplated by Section 319 Cr.PC Materials coming

before the Court in course of such enquiries can be used for
corroboration of the evidence recorded in the court after the trial
commences, for the exercise of power under Section 319 Cr.P.C, and
also to add an accused whose name has been shown in Column 2 of
the charge-sheet. In view of the above position the word 'evidence'
in Section 319 Cr.P.C has to be broadly understood and not literally
i.e. as evidence brought during a trial.

Question No.II
Q.II Whether the word “evidence” used in Section 319 (1) Cr.P.C
could only mean evidence tested by cross-examination or the court
can exercise the power under the said provision even on the basis of
the statement made in the examination-in-chief of the witness
concerned?

A. Considering the fact that under Section 319 Cr.PC a person

against whom material is disclosed is only summoned to face the
trial and in such an event under Section 319(4) Cr.PC the
proceeding against such person is to commence from the state of
taking of cognizance, the Court need not wait for the evidence
against the accused proposed to be summoned to be tested by cross-
examination.

Question No.IV

QIV What is the nature of the satisfaction required to invoke the

power under Section 319 Cr.PC to arraign an accused ? Whether
the power under Section 319(1) Cr.PC can be exercised only if the
court is satisfied that the accused summoned will in all likelihood be
convicted?

A. Though under Section 319(4)(b) Cr.PC the accused

subsequently impleaded is to be treated as if he had been an
accused when the Court initially took cognizance of the
offence, the degree of satisfaction that will be required for

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
6

summoning a person under Section 319 Cr.PC would be the

same as for framing a charge. The difference in the degree of
satisfaction for summoning the original accused and a
subsequent accused is on account of the fact that the trial may
have already commenced against the original accused and it is
in the course of such trial that materials are disclosed against
the newly summoned accused. Fresh summoning of an accused
will result in delay of the trial-therefore the degree of
satisfaction for summoning the accused (original and
subsequent) has to be different.

Question No.V

Q.V Does the power under Section 319 Cr.PC extend to

persons not named in the FIR or named in the FIR but not
charge-sheeted or who have been discharged ?

A. A person not named in the FIR or a person though named in

the FIR but has not been charge-sheeted or a person who has
been discharged can be summoned under Section 319 Cr.P.C.
provided from the evidence it appears that such person can be
tried along with the accused already facing trial. However, in
so far as an accused who has been discharged is concerned the
requirement of Sections 300 and 398 Cr.P.C. has to be
complied with before he can be summoned afresh.”

13. Even prior to the Constitutional Bench judgment, the

settled legal proposition with respect to powers of court under section
319 Cr.P.C was settled one as according to judicial pronouncement
reported as Sarbjit Singh & Anr vs. State of Punjab & Anr, 2009(3)
RCR(Crl), 388, in which it has been held that power to summon a
person under section 319 Cr.P.C is really an extra ordinary power
which is conferred on the court and should be used sparingly and only

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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if compelling reasons exist for taking cognizance against the other

person against whom action has not been taken. Sarbjit's case
(supra) was also discussed in Hardeep's case (supra) in para no.91
of the judgment and extracts of paras no.17 and 18 of Sarbjit's case
(supra) was extracted as under: --
"For the aforementioned purpose, the courts are required
to apply stringent tests; one of the tests being whether
evidence on record is such which would reasonably lead to
conviction of the person sought to be summoned.....
Whereas the test of prima facie case may be sufficient for
taking cognizance of an offence at the stage of framing of
charge, the court must be satisfied that there exists a strong
suspicion. While framing of charge in terms of Section 227
of the Code, the court must consider the entire materials on
record to form an opinion that the evidence if unrebutted
would lead to a judgment of conviction. Whether a higher
standard be set up for the purpose of invoking the
jurisdiction of section 319 of the Code is the question. The
answer of these questions should be rendered in the
affirmative. Unless a higher standard for the purpose of
forming an opinion to summon a person as additional
accused is laid down, the ingredients thereof viz. (i) an
extraordinary case, and (ii) a case for sparingly (sic
sparing) exercise of jurisdiction, would not be satisfied."

14. When Sarbjit's case (supra) was considered by the

Constitutional Bench in Hardeep's case (supra) legal proposition
laid down in Sarbjit's case (supra) was not adversely commented
upon rather the proof of higher standard of evidence as compared
to the stage of section 227 Cr.P.C was upheld in conclusions of
Hardeep's case (supra) as juxtaposed above. Moreover, in para

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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no.98 of Hardeep's case (supra) again it was concluded that

power under section 319 Cr.P.C is discretionary and extraordinary
power and is to be exercised sparingly and in those cases where
the circumstances of the case so warrant.
15. Now according to answer of question no.4 answered
in Hardeep's case (supra) the decree of satisfaction that will be
required for summoning a person under Section 319 Cr.P.C. would
be the same as for framing a charge. However, the difference in the
degree of satisfaction for summoning the original accused and a
subsequent accused is on account of the fact that the trial may have
already commenced against the original accused and it is in the
course of such trial that materials are disclosed against the newly
summoned accused. Fresh summoning of an accused will result in
delay of the trial. Therefore, the degree of satisfaction for
summoning the accused (original and subsequent) has to be
different.
16. The Hon'ble Apex Court in another judgment
reported as Sarojben Ashwinkumar Shah Etc vs. State of Gujrat
and othetrs, 2011(3) BC, 543, has laid down as many as eight
propositions of law so far as powers under section 319 Cr.P.C are
concerned and the same are again extracted below:
(i) The Court can exercise the power conferred on it under
Section 319 of the Code suo moto or on an application by
someone.

(ii)The power conferred under Section 319 (1) applies to all

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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courts including the Sessions Court.

(iii)The phrase “any person not being the accused” occurring

in Section 319 does not exclude from its operation an
accused who has been released by the police under
Section 169 of the Code and has been show in Column 2
of the charge-sheet- In others words, the said expression
overs any person who is not being tried already by the
Court and would include person or persons who have
been dropped by the police during investigation but
against whom evidence showing their involvement in the
offence comes before the Court.

(iv)The power to proceed against any person, not being the

accused before the Court, must be exercised only where
there appears duing inquiry or trial sufficient evidence
indicating his involvement in the offence as an accused
and not otherwise- The word 'evidence' in Section 319
contemplates the evidence of witnesses given in Court in
the inquiry or trial- The Court cannot add persons as
accused on the basis of materials available in the charge-
sheet or the case diary but must be based on the evidence
adduced before it- In other words, the court must be
satisfied that a case for addition of persons as accused,
not being the accused beofore it, has been made out on
the additional evidence let in before it.

(v)The power conferred upon the court is although

discretionary but is not to be exercised in a routine
manner- In a sense, it is an extraordinary power which
should be used very sparingly and only if evidence has
come on record which sufficiently establishes that the
other person has committed an offence- A mere doubt
about involvement of the other person on the basis of the
evidence let in before the Court is not enough- The Court
must also be satisfied that circumstances justly and

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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warrant that other person be tried with the already

arraigned accused.

(vi)The court while exercising the power under Section 319 of

the Code must keep in view full conspectus of the case
including the stage at which the trial has proceeded
already and the quantum of evidence collected till then.

(vii)Regard must also be had by the Court to the constraints

imposed in Section 319 (4) that proceedings in respect of
newly added persons shall be commenced afresh from the
beginning of the trial.

(viii)The court must, therefore, appropriately consider the

above aspects and then exercise its judicial discretion.

17. In view of the above juxtaposed legal propositions in

Sarojben's case (supra) again powers under section 319 Cr.P.C
are extraordinary powers which should be used very sparingly and
only if the evidence has come on record which sufficiently
establishes that the other person has committed an offence and
this proposition no.5 of Sarojben's case (supra) is just equivalent
to answer to question no.4 rendered by the Constitutional Bench
in Hardeep's case (supra).
18. Now the legal proposition which emphasizes is that
decree of satisfaction needed by the court is of higher standard of
decree of satisfaction needed at the stage of framing of charge and
even answer to question no.4 rendered in Hardeep's case
(supra), decree of satisfaction for summoning of original accused

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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and subsequent accused is to be different as fresh summoning of

accused will be resulting in delay of trial.
Keeping in view the dictum laid-down by the
Hon’ble Courts in the above said judgments coupled with the facts
of this case, it has been observed by this court that complainant
appeared before the court as PW1 and she has admitted in her
cross-examination that father of Shekhar Gupta is a disabled
person. She did not know whether Anil Gupta is 64 percent
disabled. The name of her mother-in-law is Kusum. She admitted
that she suffered from the problem of Arthritis and she faced the
some problem in walking. She has seen her statement Ex.DA and
that her statement was recorded on 12.03.2016 before Women Cell
where she has got recorded that there was no dispute of dowry but
there was a dispute of differences and she is ready to reside with
her husband in Ludhiana. Further voluntarily stated that she has
given that statement under pressure. She denied that after her
pressure, Shekhar has got his transfer at Ludhiana. She admitted
that her husband used to come Rohtak from Ludhiana on weekend.
She did not know whether her husband used to go Rohtak to look
after his parents. For the four semester examination, her father
came to her home and brought her at her parental house and she
remained one and a half months at Sirsa. At that time, there was no
any issue to her. She further admitted that she has been residing in
the house of Pawan Behal at Ludhiana on rent. She did not know

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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whether Shekhar Gupta has given any complaint to Ludhiana

police that she has taken his household articles from his house and
went away. She did not know whether Pawan Behal has also given
the same statement to the police. She denied that Shekhar Gupta
has not beaten her and she has wrongly mentioned in her
complaint that Shekhar Gupta has beaten her. She has got medico-
legally examined at Ludhiana but the copy of the same was not
handed over to the police.
Perusal of disability certificate of A.K. Gupta issued
by Civil Surgeon Rohtak shows that A.K. Gupta is 64 percent
disabled. Perusal of medical record of Kusum Lata also shows that
she has been suffering from the problem of Arthritis, Osteoporosis
Varicose Veins and requires both knee replacement.
Deepika has recorded her statement Ex.DA on
12.03.2016 before Women Cell, Sirsa wherein she stated that her
marriage was solemnized on 23.02.2012 according to Hindu Rites.
She is having one daughter. Due to domestic reasons, there was a
differences in the family. She came alongwith her sister at Sirsa
about six months ago. Thereafter, she herself did not go back to her
matrimonial home. Moreover, her husband Shekhar Gupta did not
come to take back her at his home. She has given this application to
settle in her matrimonial home as there was no any case of dowry.
Her husband has been working in bank at Ludhiana and she would
resides in Ludhiana. As and when her husband would take any house

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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at Ludhiana then she would go alongwith her husband. In this

panchayat, there differences between both the parties have been
resolved. Therefore, she did not want any action on her application
against her mother-in-law, father-in-law and sister-in-law as she did
not want to take any action.
Perusal of police report vide case no. 3482-PC dated
02.12.2015, 813-Med. Cell dated 02.01.2015 complainant Deepika
wife of Shekhar Gupta son of Anil Gupta, shows that matter has been
resolved in the panchayat and differences between the parties has been
removed and it appears from the statement of both the parties that this
case was not for demand of dowry.
Moreover, Hon’ble Punjab and Haryana High Court has
held in case titled Meena Devi Vs. Narender 2003 (4) RCR (Criminal)
849 that challan against husband, his mother, two brothers and their
wives. Application to summon other family members dismissed.
Allegations against them general in character and are confined to
demand of dowry. There is a tendency to involve every member of the
family which has been reflected in large number of cases. Hon’ble
Punjab and Haryana High Court has also held in case titled Khazana
Ram Vs. State of Haryana etc. 2004(4) RCR (Criminal) 902 that
application for summoning sister-in-law of deceased as additional
accused in case under Section 304-B was dismissed. She was married
and live at a different place with her husband. She could not be a
beneficiary of demand of dowry.

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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Moreover, this case is thoroughly investigated by the police

and they were found innocent, In the considered view of this Court
allegations levelled by the complainant against the proposed accused
are vague and general in nature, which is not sufficient to summon the
proposed accused for facing the trial along with the accused.
Moreover, Hon'ble Supreme court of India has also held in case titled
Krishnappa vs State of Karnataka 2004 94) RCR (Crl.) 678 that
Court not summon a person as additional accused under section 319
Cr.P.C and pass an order mechanically merely on the ground that some
evidence had come on record implicating the persons. Hon’ble Punjab
and Haryana High Court has held in case titled Shikha Mahajan @
Nidhi Mahajan Vs. State of Punjab and others Law Finder Doc Id #
1327213 that allegations of harassment and maltreatment on account
of demand of dowry, against mother-in-law and sister-in-law found to
be false and they were kept in column No. 2. Thereafter, similar
allegations against mother-in-law and sister-in-law during course of
her statement recorded before trial court and sought summoning of
both of them as additional accused under Section 319 Cr.P.C., 1973.
During course of inquiry, complainant resided with her husband in a
separate accommodation for most of time except initial one year of her
marriage. No fresh material placed on record to justify summoning of
mother-in-law and sister-in-law as additional accused. Therefore,
application for summoning mother-in-law and sister-in-law as
additional accused rightly dismissed.

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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Keeping in view the dictum laid down by the Hon’ble High Court
coupled with the facts of this case, it has been observed by this Court that
before the time of filing the present case, complainant Deepika was
residing alongwith her husband (accused) at Ludhiana in a rented
accommodation and the proposed accused were residing at Rohtak. If
there was any dispute between husband and wife, that was occurred at
Ludhiana but not alongwith the proposed accused. In the considered view
of this Court, learned trial Court has summoned the proposed accused
wrongly and illegally.''

6. I have again heard the learned counsel for the parties and have

gone through the case file very carefully.

7. Now, from the testimony of complainant Deepika while appearing

as PW1 before the court as well as her statement Ex.DA and the observations

of the learned Additional Sessions Judge in the Revision Petition, made one

thing very clear that there was no demand of dowry or harassment given to the

complainant at the hands of accused Anil Gupta and Kusum Gupta and if there

was any dispute, it was between complainant and her husband Shekhar Gupta

only which was occurred at Ludhania but not along with the proposed accused.

8. Thus, the nature of allegations leveled in the complaint and the

ocular evidence of the complainant has been examined in the light of the

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293
 State Vs. Shekhar Gupta
(CNR No.HRSI03-012876-2016) (CIS No.CHI-767-2016)
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observations made by the learned Additional Sessions Judge and in these

circumstances, I am of the considered view that no prima-facie case is made

out to summon Anil Gupta and Kusum Gupta as additional accused along with

accused already facing trial and thus, the application in hand is hereby

dismissed.

Pronounced. [Pooja Singla]

Addl.Chief Judicial Magistrate,
Dated: 25.05.2022. Sirsa.UID-HR0293

Note: This order contains 16 pages and each page has been checked and
signed by me.

[Pooja Singla]
Addl.Chief Judicial Magistrate,
Sirsa.UID-HR0293
Puneet Kumar, Stenographer-II

Pooja Singla,
Addl.Chief Judicial Magistrate,
Sirsa, UID No.HR0293