The powers under Section 319 CrPC are discretionary and extraordinary, to be exercised sparingly and not in a casual and cavalier manner for summoning a person as an additional accused. There must be cogent and credible evidence, which, if un-rebutted, would lead to the conviction of the accused.

JUDGMENT :

(Dinesh Kumar Singh, J.)

Application No. 09 of 2022

1. This application seeks amendment in prayer clause of the application.

2. Heard.

3. Allowed. Let necessary amendment be carried out.

On Memo

1. Heard Mr. Ayodhya Prasad Mishra, learned counsel for the applicants as well as Mr. Anurag Varma, learned Additional Government Advocate, representing respondent no. 1-State, and gone through the record.

2. By way of this application under Section 482 CrPC the applicant have prayed (as per amended prayer) for quashing of the order dated 21.04.2009 passed by the learned Special Judge, SC/ST Act, Gonda in Sessions Trial No.142 of 2004 arising out of Crime No.015 of 2004 , under Sections 498-A and 304-B IPC read with Section 3/4 D.P. Act.

It is stated at the Bar that applicant no. 1 has expired.

3. An FIR vide Crime No.015 of 2004, under Sections 498-A, 304-B IPC read with Section 3/4 D.P. Act at Police Station Kaudiya, District Gonda on a written complaint of uncle of the deceased, Pammi; it was alleged that the deceased was married to Vinay Kant, alias Babu; marriage took place 5 years before the date of incident; it was further alleged that the accused, named in the FIR, i.e. husband, father-in-law, mother-in-law, two elder brother-in-laws and sister-in-laws were not satisfied with the dowry given at the time of marriage, they were demanding hero-honda motorcycle and one golden chain as additional dowry; all these accused would torture and subject the deceased to cruelty for the additional dowry; on 28.02.2004, information was given to the complainant that the deceased had died and when the family members, including the complainant, reached at the place of incident, they found the deceased lying dead. It was alleged that the in-laws, named in the FIR, had killed the deceased for the dowry demand.

4. The police, after investigating the offence, filed charge-sheet only against the husband, Vinay Kant, alias Babu for the affence under Sections 498-A and 304-B IPC read with Section 3/4 D.P. Act. PW-1, complainant (uncle of the deceased) and PW-2, father of the deceased, were examined. These two witnesses reiterated their allegations made by them under Section 161 CrPC. After their statement/evidenced got recorded in the Court, an application under Section 319 CrPC came to be filed for summoning the applicants as additional accused to face trial.

5. The learned trial Court vide order dated 28.11.2005, rejected the said application on the ground that there was no credible and cogent evidence available on record against the applicants to summon them as additional accused regarding their involvement in commission of the offence. It was further held that the charge was framed against the husband of the deceased under Sections 498-A and 304-B IPC read with Section 3/4 Dowry Prohibition Act and in alternative under Section 302 IPC. In view thereof, there was no cogent and credible evidence available against the applicants. The learned trial Court dismissed the application under Section 319 CrPC filed on behalf of the complainant. This order dated 28.11.2005 was challenged before this Court by way of filing Criminal Revision No.653 of 2005.

6. This Court vide the said order dated 26.11.2008 allowed the said criminal revision on the ground that the law on the subject was already settled that if the evidence collected during the course of trial goes un-rebutted and was sufficient to prove the offence, the charge should be framed. It was further said that the evidence of PW-1 and PW-2 was of such nature that if the same would go un-rebutted, it would be sufficient to prove the guilt of the persons for their summoning, on an application under Section 319 CrPC may be filed. In view thereof, this Court quashed the order passed by the learned Special Judge dated 28.11.2005 and remanded the matter back to the learned trial Court to take a fresh decision on the application under Section 319 CrPC.

7. On remand, the learned trial Court has passed t