PUNJAB AND HARYANA HIGH COURT
Crl. Revision No. 1473 of 2006. D/d. 4.12.2006
Netarpal Singh - Petitioner
State of Haryana and others - Respondents
For the Petitioner :- Mr. Jitin Talwar, Advocate.
For the Respondent Nos. 2 and 3 :- Mr. Baldev Singh, Sr. Advocate with Mr. Ravi Kumar, Advocate.
Criminal Procedure Code, Section 319 - Juvenile Justice (Care and Protection of Children) Act, 2000, Section 18 - Can a Juvenile offender be summoned as additional accused to stand trial alongwith others who were not Juvenile (yes) - Criminal trial of offence under Section 304-B - Husband and his parents sent up for trial - During trial material against brother-in-law (below 18 years) of deceased brought on record - Summoning order validly issued - Though as per provisions of Section 18 of the Act no juvenile shall be charged or tried for any offence together with the person who is not a juvenile, but at the same time it cannot be said that a juvenile cannot be summoned as an accused under Section 319 Cr.P.C. 2004(4) RCR(Crl.) 242 (P&H) relied. [Paras 6, 8 and 11]
Case referred :Raju v. State of Haryana, 2004(4) RCR(Crl.) 242 (P&H).
T.P.S. Mann, J. - The petitioner has filed the present revision against the order passed by Additional Sessions Judge, Fast Track Court, Gurgaon on 18.5.2006 whereby the application filed on behalf of the prosecution under Section 319 Cr.P.C. to summon Meenu and Vinod, respondent Nos. 2 and 3 respectively, as accused, was dismissed.
2. The FIR was registered on 16.1.2005 on the basis of a statement made by the present petitioner against Ajay, Smt. Bimlesh Devi and Ram Avtar for causing the death of his daughter Kusum by burning her after pouring kerosene on her. While Kusum was lying admitted in Safdarjung Hospital in a burnt condition, her statement was recorded by Sub-Divisional Magistrate, New Delhi on 17.1.2005. In her statement, Smt. Kusum stated that after she had cooked the meals and her in-laws had taken it, they started quarreling with her saying that she did not know household job and appeared to be quarrelsome. They further said that they would keep her only if she brought Rs. 2.5 lacs. She told them that her father was a poor person, who has six daughters and thus, not in a position to give the amount. At this, her monther-in-law Bimlesh Devi and her father-in-law Ram Avtar caught hold of her whereafter her husband Ajay sprinkled kerosene upon her whereas Meenu, her sister-in-law and Vinod, her brother-in-law, set her on fire. She started shouting which attracted Gudan and Satbir, who also did not save her. She ran outside but soon fell down.
3. After conclusion of the investigation of the case, the police presented challan against husband, father-in-law and mother-in-law of deceased Kusum whereas Meenu and Vinod were left out. After framing of charges against the husband, father-in-law and mother-in-law of the deceased, the prosecution examined Sh. R. Chopra, Sub-Divisional Magistrate as PW-1, who proved statement Ex. PA made before him by deceased Kusum. The prosecution also examined Dr. Chanderkant as PW-2 who proved copy of postmortem report Ex. PF. An application was thereafter moved by the prosecution for summoning Meenu and Vinod as accused to stand trial for the various offences. The same was, however, declined by Additional Sessions Judge, Gurgaon on the ground that Vinod had neither been arrested by the police nor found innocent. Mere fact that the police could not arrest him was not sufficient to summon him under Section 319 Cr.P.C. As regards Meenu it was held that she was a minor girl and in the natural course of human conduct, a minor girl would not burn her Bhabhi (sister-in-law). Accordingly, it was concluded that it was not desirable to summon Meenu as additional accused. The application qua Vinod was held to be not maintainable. The prayer of the prosecution under Section 319 Cr.P.C. was, accordingly, dismissed.
4. Learned counsel for the petitioner has submitted that from a bare reading of the dying declaration of Smt. Kusum, it was clear that both Meenu and Vinod took active part in the commission of the offence. After Bimlesh Devi and Ram Avtar caught hold of the victim, kerosene was sprinkled by Ajay and thereafter both Meenu and Vinod set the victim on fire. Thus, there was sufficient material available on the file to summon both Meenu and Vinod as an additional accused under Section 319 Cr.P.C. to stand trial along with the three accused, who were already before the Court.
5. Learned counsel appearing for respondent Nos. 2 and 3 has submitted that Vinod accused was not arrested during the investigation of the case and thus, the application of the prosecution under Section 319 Cr.P.C. to summon him as an additional accused was not maintainable. Moreover, Vinod was born on 23.1.1988, as is clear from Annexure R-3 and R-4 and thus, on the date of the occurrence i.e. 16.1.2005, he was less than 18 years of age. Accordingly, he could be termed as a juvenile. In such a situation, Vinod could not be jointly tried with the other accused on account of prohibition envisaged in Section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). As per Section 319 Cr.P.C., only those accused could be summoned who could be tried together with the other accused already facing trial.
6. It is yet to be seen as to whether Vinod accused was less than 18 years of age on the date of the occurrence. For that, evidence will have to be led before the Court from where it would be established either way. Even if it is taken that Vinod was a juvenile, being under 18 years of age, on the date of the occurrence there is no bar to his being summoned under Section 319 Cr.P.C. Though as per provisions of Section 18 of the Act no juvenile shall be charged or tried for any offence together with the person who is not a juvenile, but at the same time it cannot be said that a juvenile cannot be summoned as an accused under Section 319 Cr.P.C. This proposition of law was enunciated in Raju and others v. State of Haryana and another, 2004(4) RCR(Crl.) 242 (P&H), wherein it was held as under :-
- "A plain reading of the Section 319 Cr.P.C. makes it clear that when it appears to the Court from the evidence that any person not being an accused has committed an offence, the Court may proceed against such person. The legislative intent is very clear and it does not call for exhaustive consideration. At the time of summoning, the trial Court is not to see as to whether the person who is to be proceeded against is a juvenile or not. That stage will come only when the accused appears before it and claims to be a juvenile. In case, he can prima facie show to the Court on the basis of any documentary evidence that he was a juvenile at the time of alleged occurrence, his case can be segregated from others for the purpose of trial or he can be sent to Juvenile Board as well with regard to determination of his age. If later any accused turns out to be a juvenile, the forum and the manner of trial would automatically change. Summoning and trial are evidently mutually exclusive; Section 18 sub-section (2) of the Act deals with similar type of situation. If the accused who is not a juvenile, has been charged and tried together with the juvenile, the Board taking cognizance of offence can direct separate trial of the juvenile and other person on account of prohibition contained in Section 18 of sub-section (1) of the Act. On the same analogy, if trial Court after summoning the accused under Section 319 Cr.P.C. comes to the conclusion that the person against whom proceedings have been initiated is, in fact, a juvenile, his trial can be held under the Act. In other words it can be said that the trial is prohibited and not the summoning. In case, arguments advanced by learned counsel for the petitioners are accepted, it would be giving handle to the Investigating Agency not to challan the accused, who simply claims to be a juvenile, and, therefore, the trial Court would also be precluded from summoning the said accused under Section 319 Cr.P.C. In other words it amounts to overreaching the law."
8. It is clear from the dying declaration of Smt. Kusum that she was set on fire by Vinod. The said statement of Kusum containing the role of Vinod is before the Court by way of the testimony of Sh. R. Chopra, Sub-Divisional Magistrate PW-1. Though, during the investigation of the case, Vinod was not available to the police and he could not be arrested yet at present he is before the Court. He is represented by a counsel here. The objection of the defence regarding the non-maintaining of the application under Section 319 Cr.P.C., qua him, thus, cannot be sustained.
9. As regards Meenu accused, learned counsel representing her has drawn the attention of the Court to the testimony of Dr. Chanderkant PW-2 (Annexure R-1) as well as the medico-legal report (Annexure R-2) dated 15.1.2005 in respect of the victim. In the said two documents it was mentioned that there was no smell of kerosene from the scalp and body of the victim although 95% superficial and deep ante mortem burns were present. Dr. Chanderkant PW-2 during his cross-examination gave an opinion that considering the observation in the postmortem report, the burn injuries were either accidental or suicidal but the same were not homicidal. From the said material, it was argued that there was no question of the victim being set on fire by the accused, much less by Meenu and Vinod as the burns were not homicidal but were either accidental or suicidal.
10. The aforementioned observation of Dr. Chanderkant during his cross- examination was only an opinion expressed by him. Whether the same carries any weight will be seen by the trial Court at the appropriate stage. For the present, material available on the file is that the victim was set on fire by Meenu and Vinod after kerosene poured on her by Ajay and at the same time the victim being caught hold by Ram Avtar and Bimlesh Devi.
11. In view of the above, I have no hesitation in allowing the present revision. The order passed by Additional Sessions Judge, Fast Track Court, Gurgaon in rejecting the plea of the prosecution under Section 319 Cr.P.C. is set aside. Consequently, the application filed by the prosecution under Section 319 Cr.P.C. for summoning Meenu and Vinod as additional accused to stand trial with the other accused is accepted.