The main legal point established in the judgment is that the summoning order can be based on sufficient material from police statements recorded during the investigation, and the nomenclature of the application filed under Section 319 of the Code has no bearing on the decision.

1. Davinder Kaur, petitioner seeks quashing of the order dated 18-5-1998 (Annexure P-7) passed by the Additional Chief Judicial Magistrate, Kapurthala whereby the petitioner has been summoned to face trial in case bearing FIR No. 22 dated 18-4-1997 registered under Section 420 of the Indian Penal Code with Police Station, Subhanpur, order dated 6-4-1999 (Annexure P.9) passed by the Additional Chief Judicial Magistrate, Kapurthala whereby application moved by the petitioner for her discharge from the case was dismissed and the order dated 26-11-2001 (Annexure-P.10) of the Sessions Judge, Kapurthala affirming the above orders of the Additional Chief Judicial Magistrate.

2. The facts which can be gathered from the record briefly stated are that the case was registered on the statement of Harbans Singh son of Tara Singh, resident of Nadala, Police Station Subhanpur, District Kapurthala. According to the stand of the complainant, Baldev Singh and his wife Davinder Kaur had received Rs. 2,60,000.00 from Harbans Singh, Rs. 1,10,000.00 from Balwinder Kaur, Rs. 1,70,000.00 from Gurmej singh Subedar, Rs. 1,20,000.00 from Sucha Singh, Rs. 2,07,000.00 from Manj Singh, Rs. 1,11,000.00 from Gurmit Singh, Rs. 1,20,000.00 from Tara Singh and Rs. 1,20,000.00 from Puran Singh for sending their sons abroad. All these persons had submitted separate applications addressed to the Senior Superintendent of Police, Kapurthala, wherein it has been pointed out that the accused had constructed a big bungalow in the name of Davinder Kaur at Ludhiana. As their sons had not been sent abroad, a criminal case was got registered on the basis of the reports lodged. After the investigation of the case the police sent up accused Baldev Singh for trial while name of Davinder Kaur was kept in column No. 2 in the report submitted under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). Baldev Singh has been declared as proclaimed offender.

3. The Additional Chief Judicial Magistrate, Kapurthala proceeded to record the statements of Ex-Captain Puran Singh (P.W. 1) and Harbans Singh (P.W. 2), who were prosecution witnesses, in terms of the provisions of Section 299 of the Code. Thereafter application was moved from the side of the State with a prayer to summon Davinder Kaur, who had not been sent up for trial having been found innocent, to face the prosecution on the basis of her involvement spelled out from the statements of witnesses examined. This application was accepted by the Additional Chief Judicial Magistrate, Kapurthala, as per order dated 18-5-1998 and Davinder Kaur, petitioner-accused was summoned to face trial for the offence under Section 420, I.P.C. On appearance before the Court Davinder Kaur, petitioner filed an application dated 7-10-1998 seeking her discharge from the case primarily for the reason that no opportunity for cross-examination of the witnesses examined had been afforded to her. The prayer made for discharge of the petitioner-accused was declined by the Additional Chief Judicial Magistrate, Kapurthala as per order dated 6-4-1999. Against that order Criminal Revision No. 57 dated 14-5-1999 was filed which too was dismissed by the Sessions Judge, Kapurthala as per order dated 26-11-2001. Hence, the present petition.

4. I have heard learned Counsel for the petitioner at length.

5. Learned counsel for the petitioner has submitted before me that the statements of witnesses, Ex.-Capt. Puran Singh and Harbans Singh had been recorded by the Additional Chief Judicial Magistrate in terms of requirement of Section 299 of the Code in the absence of the petitioner-accused and the statements made were not made during the course of any inquiry or trial, therefore, these could not be taken into consideration for forming an opinion to summon the accused under Section 319 of the Code. To support the stand taken reliance was placed by him on the observations made in U Ba Hlainq V/s. Balabux Sodani, AIR 1937 Ra