S.N.H.Zaidi, J. - (1.) THIS is a revision against the order dated 3.6.2004, passed by Addl. Sessions Judge, F.T.C. No. 4, Kanpur Dehat summoning the revisionists for trial on the application moved under Section 216, Cr. P.C., in S.T. No. 454 of 2003, State v. Rati Ram and another.
(2.) THE relevant facts which gave rise to this revision, in brief, are that two sons of accused Rati Ram ; namely, Raj Kumar and Mulayam Singh, were married to Nirmala and Anita respectively. Both Raj Kumar and Mulayam Singh were working in a garment factory in Gurgaon and as they were not allowed frequent leaves, they could occasionally visit their village. Nirmala and Anita, who were residing in their matrimonial home in village Bhau Singh Ka Purva within the Police Station Mangalpur of District Kanpur Dehat, used to go to Mangalpur to talk with their husbands on telephone. On 4.3.2003, both of them had gone to make telephone calls and when they returned from Mangalpur, they were rebuked by Rati Ram and his wife Ram Kali that it was not known whom they talk to on telephone and due to their activities they were being defamed in the society and asked them to die. On 5.3.2003, both the ladies committed suicide at about 10.00 a.m. by hanging themselves with the ceiling after bolting the room from inside. THE information of the incident was given to the concerned police, who forcibly opened the door of the room and put down the dead bodies and after preparing inquest report, the dead bodies were sent for post mortem examination. In their post mortem reports the cause of death was reported as 'asphyxia as a result of hanging'. THE F.I.R. of the incident was lodged by Bhaiya Lal, father of deceased Anita on 30.3.2003, whereupon a case under Section 306, I.P.C. was registered against Rati Ram and his wife Ram Kali. THE police, after investigation, submitted charge-sheet against both of them under the said section. THE Magistrate took cognizance and committed the case for trial to the Court of Sessions. THE case was transferred for disposal to Addl. Sessions Judge, F.T.C. No. 4 before whom P.W. 1 Suraj Prasad, the father of deceased Nirmala, has stated in his examination that after the marriage of Nirmala with Raj Kumar, at the time of chauth ceremony when he had gone to bring Nirmala back then Rati Ram, Smt. Ram Kali, Raj Kumar, Mulayam and Asha Devi (sister of Raj Kumar) demanded Rs. 12,000 and a golden chain, else refused to let Nirmala go with him and then a golden ring was given to them and Nirmala was allowed to go. He has also said that her daughter was subjected to mental and physical torture on account of demand of dowry. An application was then moved by him under Section 216, Cr. P.C. for alteration of charge under Sections 498A and 304B, I.P.C. THE learned Addl. Sessions Judge allowed that application by the impugned order and ordered for framing of charges of the said sections against accused Rati Ram and Ram Kali in the alternative and also ordered for summoning Raj Kumar, Mulayam Singh and Asha Devi for trial with the observations that a prima facie case under Sections 498A and 304B, I.P.C. is made out against them. Feeling aggrieved with the said order, this revision has been preferred by Raj Kumar, Mulayam Singh and Asha Devi only. I have heard the learned A.G.A. for the State as nobody appeared either for the revisionists or for opposite party Nos. 3 and 4 and perused the materials on record.
(3.) THE impugned order has been given on an application moved under Section 216, Cr. P.C. which deals with alteration of charge and empowers the Court to alter or add the charge during the trial at any time before the judgment is pronounced. It does not provide that the Court may summon any person as accused after the charge is altered or added. THE trial Judge has, therefore, committed grave illegality in summoning the revisionists for trial under Sections 498A and 304B, I.P.C. in exercise of powers under Section 216, Cr. P.C. THE Sessions Judge can take the cognizance of an offence against a person only on the committal of the case under Section 209, Cr. P.C. or can summon any person for trial with the accused in the given circumstances under Section 319, Cr. P.C. THE circumstances, as mentioned above, do not warrant the summoning of the revisionist under Section 319, Cr. P.C. also. THE impugned order is, thus, patently illegal and cannot be allowed to sustain. Besides the illegality of the order as pointed out above, the impugned order can also not be allowed to stand in the light of the undisputed facts and circumstances of the case. As described earlier, both the daughters-in-law of the accused Rati Ram and Ram Kali had committed suicide by hanging themselves after shutting the door from inside which was forcibly opened by the police. It has been admitted by P.W. 1 Suraj Prasad that the police had taken down the dead bodies from the ceiling. These facts are corroborated from the inquest reports of the dead bodies prepared by the Naib Tehsildar. In the post mortem reports the doctor has opined that the cause of death was asphyxia as a result of hanging. In view of this, it cannot be presumed that the ladies were killed and then their bodies were hanged, as has been stated by P.W. 1. This witness has not said a word that any of the revisionists was present in the village on the date of occurrence. In the F.I.R. Bhaiya Lal, the father of deceased Anita, had specifically mentioned that both Raj Kumar and Mulayam Singh were in Gurgaon. There is nothing on record which could show the presence of Asha Devi also on the date and place of occurrence. The presence of the revisionists at the place of occurrence, therefore, does not make out.;