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Judgment
P.D. Waingankar, J.
By order dated 25.4.2015, the revision petitioner Nos. 1 and 2 have been added as accused Nos. 4 and 5 in S.C. No.425/2013 on the file of Sessions Judge at Bangalore in pursuance of an application filed by the prosecution under Section 319 Cr.P.C. Questioning the legality and correctness of the said order, this revision petition is preferred.
I have heard both the learned counsel appearing for the revision petitioners, Government Pleader for the State and the counsel for respondent No. 2-complainant. Perused the records.
It is seen from the records that the complainant Sapna is running a beauty parlour at R.T. nagar, Bangalore. Accused No. 1 Mukund was working at Herbal Life Bangalore. The complainant and the accused No. 1 came in contact with each other, they developed love for each other. In due course of time, their marriage was negotiated by their parents. The engagement ceremony was also performed at Hotel Capitol, Raj Bhavan Road, Bangalore. The date of marriage was fixed, the invitation cards were distributed. Taking advantage of the engagement ceremony, the accused No. 1 had sexual intercourse with the complainant and thereafter one fine morning, the accused fled away from Bangalore without informing the complainant. He declined to marry her for the sake of dowry. The complainant came to know that accused No. 1 went to Kolkatta to the house of his sister-accused No. 5. She contacted the accused No. 1 and thereafter the complainant alongwith her parents went to Kolkatta to see accused No. 1. They were received by accused No. 4 the sister of accused No. 1 and accused No. 2-father of accused No. 1.
The case of the complainant is that accused No. 1 declined to marry her after engagement ceremony and distribution of marriage invitations cards. Further, it is her case that accused No. 1 and his family members put forth a demand for Rs. 25,00,000/- and a car as a precondition for performance of marriage. The complainant and her parents were not in a position to offer that much dowry demanded by the accused. The accused No. 1 had practically deserted her. She filed a complaint before the Police Commissioner against accused No. 1 and his parents-accused Nos. 2 and 3. Thereby Cr. No. 57/2012 of J.C Nagar police station came to be registered against them. During the course of investigation, the Investigating Officer also recorded further statement of the complainant and after completion of the investigation, a charge-sheet came to be filed against accused No. 1 to 3 for the offences punishable under Sections 420, 376 IPC and Section 4 of the Dowry Prohibition Act. The cognizance was taken and a case was committed to the Sessions Court where the evidence of the complainant was led as PW-1 and that of her father as PW-2.
It is the case of the prosecution that during the course of their evidence, both PWs-1 and 2 made statement that when the complainant alongwith her parents had been to Kolkatta, all the family members of accused No. 1-Mukund including accused Nos. 4 and 5 demanded a dowry amount of Rs. 25,00,000/- and a car as precondition for performance of their marriage, which prompted the Public Prosecutor to file an application under Section 319 Cr.P.C. to summon the sister and sister''s husband of accused No. 1-Mukund as additional accused so as to try them alongwith accused Nos. 1 to 3. The application was heard by the learned Sessions Judge and by the impugned order, the application came to be allowed and they have been added as accused Nos. and 5.
The relevant portion of the order of the Sessions Judge reads as under:--
"On perusal of evidence of PW-1, she has deposed that herself, her father, her elder sister went to Kolkatta on 8.11.2011. While they were landed in the Airport, accused No. 2, sister''s husband and accused No. 1 took them to Hotel, in the afternoon, accused No. 1, his sister''s husband and his elder sister put forth their demand for dowry of Rs. 25,00,000/-.
PW-2 also deposed in his evidence that accused Nos. 1 to 3 and sisters of accused No. 1 and sister''s husband put forth demand for dowry as a condition to perform the marriage of accused No. 1 with the complainant."
At this stage, it has to be stated that the power exercisable under Section 319 Cr.P.C. is an extraordinary power conferred on the Court to do real justice, it should be used with caution and only if compelling reasons exist for proceeding against a person against whom action has not been taken. The Court has to use the power under Section 319 Cr.P.C. sparingly and primarily to advance the cause of criminal justice, but not as a handle at the hands of the complainant to cause harassment to the person who is not involved in the commission of crime. Therefore, it has to be seen whether the subsequently added accused Nos. 4 and 5 are really involved in the commission of offence alongwith accused on record so that they can be tried alongwith them or they have been simple dragged to the Court in order to harass them. In order to ascertain whether they are really involved or not, it is necessary to go through the complaint filed by the complainant. The complaint runs into 10 to 12 pages. In the complaint, she has narrated that they went to Kolkatta, where they were received by the sister''s husband of accused No. 1 and father of accused No. 1, but nowhere she has mentioned in the complaint that accused Nos. 4 and 5 demanded dowry amount of Rs. 25,00,000/- and a car in order to perform the marriage. All that has been said in the complaint is "My father is not in a position to meet their demands, Mukund and his family members tried to extort money from me and my father by threatening not to marry." Two months after lodging of the complaint, statement of the complainant came to be recorded, which also runs into pages together. Of-course in her statement, she has made some vague allegations against accused Nos. 4 and 5 alongwith accused already on record. Her further statement mainly speaks about the sexual intercourse by accused No. 1 after engagement ceremony was held. No specific allegations have been made either in the complaint or in the subsequent statement that it is accused Nos. 4 and 5 who also demanded dowry from the complainant and her parents. The records disclose that the engagement ceremony was held in Capital Hotel, Raj Bhavan Road, Bangalore. But, these accused Nos. 4 and 5 who are the resident of Kolkatta did not come even to attend the engagement ceremony. It appears that in order to deceive the complainant, the accused No. 1 ran away from Bangalore and he went to the house of his sister at Kolkatta. With great difficulty, he was contacted and the complainant and her family members went to Kolkatta, where they were received by accused No. 4. Even in their evidence, both PW-1 and 2 have not made specific allegations against this accused Nos. 4 and 5 that they also demanded dowry of Rs. 25.00 lakhs and a car in order to perform the marriage. The main accused i.e., accused No. 1 and his parents are on record as accused No. 2 and 3. Sister of accused No. 1 is given in marriage and is residing at Kolkatta. Moreover, the complainant and accused No. 1 developed love for each other and therefore it appears that sister and sister''s husband who are residing at Kolkatta has nothing to do with their affairs except that accused No. 1 ran away to Kolkatta so as to hide himself in order to deceive the complainant. Merely because the complainant and her father in the witness box has named the petitioners by attributing vague allegations regarding the demand of dowry, it cannot be inferred that the petitioners were also involved in the crime, more so for the reason when the version of the complainant is an improvement on her earlier version in the complaint. Upon going through the entire material, I do not find any material so as to summon accused Nos. 4 and 5 in this case and to try them alongwith accused No. 1 to 3. The learned Sessions Judge without referring to the contents of the complaint and based on some vague allegations by way of improvement by complainant and her father in the witness box which infact is an improvement to the earlier version of the complainant given in her complaint in order to summon the petitioners as additional accused so as to try them alongwith accused on record. I do not find any prima-facie material as against petitioners so as to exercise discretionary power under Section 319 Cr.P.C. and to summon them as accused in this case. As such, the impugned order passed by the learned Sessions Judge summoning petitioners as accused Nos. 4 and 5 in S.C. No.425/2013 on the file of LII Addl. City Civil and Sessions Judge, Bengaluru calls for my interference.
Hence I pass the following order:--
"The revision petition is allowed. The impugned order dated 25.4.2015 in S.C. No.425/2013 on the file of LII Addl. City Civil and Sessions Judge, Bengaluru summoning the revision petitioners as accused Nos. 4 and 5 is hereby set-aside.
Send back the records to the trial Court. Since the trial has already commenced and two witnesses have been examined, the learned Sessions Judge is directed to dispose of the case expeditiously."