Point of Law: No doubt, while exercising the power under Section 319 of Cr.P.C., Court has to exercise the said power with due care and caution and not to exercise the said power in a routine course but the material available on record is clear that these petitioners abused and accompanied with accused Nos.1 and 2 and subjected for assault and the same is not only narrated in the complaint and also reiterated in the evidence of complaint as well as the witnesses.

ORDER :

This petition is filed under Section 482 of Cr.P.C., praying this Court to quash the impugned order dated 16.10.2018 passed by III-Additional District and Sessions Judge, Kalaburagi, in Criminal Revision Petition No.373/2017 and prayed this Court to confirm and uphold the order dated 02.12.2017 passed by II-Additional Civil Judge and JMFC, Kalaburagi, in C.C.No.2984/2012 and pass such other orders or directions as deemed fit in the facts and circumstances of the case.

2. Factual matrix of the case is that on 15.02.2012 the complainant/respondent No.2 lodged complaint before respondent No.1/Police stating that she was given in marriage to Saiprasad/accused No.1 on 13.05.2009 and at the time of marriage, cash of Rs.2,00,000/-and eleven tholas of gold was given to accused No.1. When respondent No.2 started to reside in matrimonial home along with accused No.1, accused No.1 started harassing her and forcing her to give her salary to him. As such, respondent No.2 being unable to tolerate the harassment, left her matrimonial house. It is also alleged in the complaint that since respondent No.2 was working at Afzalpur, every day she used to travel in public bus from Kalaburagi to Afzalpur. On 14.02.2012 at about 8.30 a.m., when respondent No.2 was at Central Bus Stand at Kalaburagi, all the accused i.e., accused Nos.1 to 4 came to the bus stand, assaulted her with hands, scolded her in filthy language and told her to bring Rs.10,00,000/-as dowry and threatened that they would take away her life if she does not bring money. Hence, the case is registered in Crime No.13/2012. The police have investigated the matter and filed chargesheet and deleted the name of the present petitioners. Thereafter, the trial was commenced and the complainant was examined and she was also partly cross-examined. Thereafter, the prosecution has filed an application under Section 319 of Cr.P.C., and the same was rejected. Being aggrieved by the rejection order dated 02.12.2017, the complainant filed the revision petition in Criminal Revision Petition No.373/2017 before III-Additional District and Sessions Judge, Kalaburagi. The revisional Court vide order dated 16.10.2018 allowed the revision petition and consequently allowed the application filed under Section 319 of Cr.P.C., and issued summons against accused Nos.3 and 4. Hence, the present petition is filed before this Court.

3. The main contention of the learned counsel for the petitioners is that the revisional Court has committed an error in passing the impugned order without application of facts as well as settled position of law. It is contended that at the first instance name of the petitioners are not reflected in the FIR and all the material chargesheet witnesses including the complainant herself has given statement before the respondent/Police during the course of investigation that it was only accused Nos.1 and 2 who had committed the said crime as on the alleged date of incident and the present petitioners had not accompanied accused Nos.1 and 2 to the bus stand. Hence, the respondent/police after recording the statement of material chargesheet witnesses found that both the petitioners had not participated in the alleged crime. Moreover, petitioner No.2 has given birth to a baby about two months prior to the alleged date of incident. Petitioner No.1 being old lady suffering from old age ailments had no chance/possibility to participate in the incident which is alleged to have taken place on 14.02.2012 and hence, the petitioners were dropped while filing the chargesheet. The learned Sessions Judge without appreciating the facts on hand allowed the revision petition and failed to take note of the order passed by the learned Magistrate who categorically given reasons while rejecting the application filed by the prosecution. The learned counsel also submitted that under Section 319 of Cr.P.C., the Court cannot issue summons in a routine manner, as summoning the persons who are not chargesheeted