Sandeep Mehta, J. - (1.) - The instant misc. petition has been filed on behalf of the petitioners challenging the order dated 23.11.2007 passed by the learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, No. 3, Bikaner, whereby, the application under Section 319 Cr.P.C. filed on behalf of the respondent No.2 has been allowed and the petitioners were summoned as additional accused in the Criminal Case No.29/2004 for the offences under Sections 498-A and 406 IPC as affirmed in revision by the learned Addl. Sessions Judge (Fast Track) No.2, Bikaner by order dated 17.11.2008.
(2.) Briefly stated the facts necessary for the disposal of this misc. petition are that the petitioners herein are father-in-law and mother-in-law respectively of the complainant respondent No.2 Shahnaz Bano, who is married to the son of the petitioners namely Farookh Mohd. The respondent No.2 filed a complaint in the court of Civil Judge (JD) and Judicial Magistrate, No.3, Bikaner against her husband as well as against the petitioners in the year 2004 with the allegations that all the accused persons named in the complaint treated her with cruelty in relation to the demand of dowry and thereafter turned her out from the house in the month of July, 2002 after retaining her dowry articles. The police investigated the matter and during the course of investigation, it came to light that the respondent No.2 i.e. the complainant and the accused Farookh Mohd. were living separately from the petitioners and that the petitioners already had a public notice published in the news paper on 16.08.2002 showing that their son Farookh Mohd. was not in their control and was living separately. The ration card of the petitioners as well as that of Farookh Mohd. was also taken on record during the course of investigation, as per which, both the families were living separately. Ultimately, the police on the conclusion of the investigation filed a charge-sheet only against Farookh Mohd. and submitted a conclusion that the petitioners were not involved in the case. The charges were framed against Farookh Mohd. and evidence was recorded. After recording statements of the four witnesses at the trial, the complainant respondent No.2 herein filed an application under Section 319 Cr.P.C. seeking summoning of the petitioners as additional accused in the case. The aforesaid application came to be allowed by the learned trial Judge and the revision challenging the said order has also been rejected as mentioned above. Hence, the petitioners have approached this Court seeking quashing of the order summoning them as additional accused in the case as well as all the proceedings subsequent thereto.
(3.) Assailing the proceedings of the courts below, learned counsel for the petitioners submits that the complainant on being examined during the course of the investigation made no allegations whatsoever against the petitioners and now at the trial, the allegation has been made against the petitioners regarding cruelty allegedly committed upon the complainant, which is just an improvement from her earlier version. It is, thus, submitted that the summoning of the petitioners in the case as additional accused merely on the basis of the improved version of the complainant was absolutely unjustified. It is submitted that in view of the fact that the petitioners had already broken their ties from their son i.e. the husband of the complainant two years prior to filing of the FIR and the fact that the petitioners were living separately from the complainant and her husband as is evident from the ration card available on the record of the case, there was no justification for summoning the petitioners as additional accused in the case. It is submitted that for the purpose of exercising the powers under Section 319 Cr.P.C., an opinion is required to be formed regarding the existence of such evidence, which would be sufficient for the likely conviction of the accused sought to be newly added and a mere opinion regarding the existence of a prima facie case was not sufficient to exercise the powers under Section 319 Cr.P.C. It is thus prayed that the orders impugned being absolutely an abuse of the process of the court deserve to be quashed.;