Suman Vs.
State of Rajasthan & ANR. [2009] INSC 1734 (13 November 2009)
Judgment
CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NO._2120 OF 2009 (Arising out of S.L.P.
(Crl.) No.2972 OF 2008) Suman ...Appellant Versus State of Rajasthan and
another ...Respondents
G.S.
SINGHVI, J.
1.
Leave granted.
2.
Whether the appellant, who was named as one of the accused in the
complaint lodged by respondent No.2, Smt. Anita alleging harassment and torture
at the hands of her husband and in-laws but qua whom the police filed negative
final report, could be summoned under Section 319 of the Code of Criminal
Procedure (for short `Cr.P.C.') and whether Judicial 2 Magistrate, First Class,
Sri Ganganagar (hereinafter referred to as `the Judicial Magistrate') was
justified in taking cognizance against the appellant under Section 498A of the
Indian Penal Code (for short `IPC') are the questions which arise for
determination in this appeal filed against order dated 10.3.2008 passed by the
learned Single Judge of the Rajasthan High Court in S.B. Criminal Misc.
Petition No.1366 of 2007.
3.
The appellant's brother Pramod Kumar was married to respondent
No.2 on 7.12.2000 at Sri Ganganagar. After one year and four months, respondent
No.2 submitted a complaint to the Judicial Magistrate alleging that due to her
failure to bring sufficient dowry and meet the demand of her in-laws, she was
subjected to physical and mental cruelty and harassment in different ways. The
learned Judicial Magistrate forwarded the complaint to the police under Section
156(3) Cr.P.C. for investigation.
Thereupon,
FIR No.150/2002 was registered at police station Jawahar Nagar, District Sri
Ganganagar for offences under Sections 406, 498A, 354, 377 and 323 IPC. During
investigation, the police recorded the statements of respondent No.2 - Smt.
Anita, her father Shri Jaipal, mother Smt.
Savitri
Devi and four other persons, namely, Shri Premnath, Shri Hanuman Chautala, Shri
Brijlal, Shri Kripal Singh and filed charge sheet on 4.1.2003 against Pramod
Kumar - husband of respondent No.2, Rukmani 3 Devi - mother-in-law and Ram
Kumar @ Rampratap - father-in-law.
Insofar
as the appellant is concerned, the Investigating Officer opined that she was
innocent because she was living at Bikaner with her husband and had not caused
harassment to respondent No.2 or made demand for dowry. By an order dated 5.8.2005,
the learned Judicial Magistrate framed charges against three accused and
adjourned the case for prosecution evidence. On 16.6.2006, the statement of
respondent No.2 was recorded. Thereafter, an application was filed on behalf of
respondent No.2 under Section 319 Cr.P.C. for issuing process against the
appellant. The learned Judicial Magistrate adverted to the contents of the
complaint filed by respondent No.2, the statements recorded under Section 161
Cr.P.C. as also the statement made by respondent No.2 before the court and held
that prima facie case was made out for taking cognizance against the appellant
for offence under Section 498-A IPC. He accordingly passed order dated 2.9.2006
and directed that the appellant be summoned through bailable warrant. The
revision filed by the appellant against that order was allowed by Sessions
Judge, Sri Ganganagar who held that in view of the bar contained in Section 468
Cr.P.C., the Judicial Magistrate was not entitled to take cognizance of the
offence allegedly committed by the appellant under Section 498-A IPC.
The
revisional order was set aside by the learned Single Judge of the High 4 Court
in S.B. Criminal Revision Petition No.25 of 2007 and the matter was remitted to
the revisional court for fresh decision in the light of the observations made
by him on the issue of limitation in the context of Section 473 Cr.P.C.
4.
In compliance of the direction given by the High Court, the
learned Sessions Judge reconsidered the revision filed by the appellant, adverted
to the facts narrated in the complaint filed by respondent No.2, the provisions
of Sections 468 and 473 Cr.P.C. and held that the order passed by the learned
Judicial Magistrate cannot be treated as barred by limitation. The learned
Sessions Judge then noted that while deciding the application filed under
Section 319 Cr.P.C., the learned Judicial Magistrate had taken cognizance of
the contents of the complaint filed by respondent No.2, which were supported by
the statements recorded by the police under Section 161 Cr.P.C. as also the
statement made by respondent No.2 before the court under Section 164 Cr.P.C.
specifically alleging that the appellant was one of the persons involved in
committing the crime and approved the order passed by the learned Judicial
Magistrate. The relevant portion of order dated 16.8.2007 passed by the learned
Sessions Judge is reproduced below:- 5 "Now, it is to be seen as to
whether, the cognizance order taken against the revision petitioner by the
subordinate court, is pure, valid and appropriate. At the state of the
revision, the revisional court has to see as to whether prima facie any
sufficient grounds are available on the file, by which proceedings could be
initiated against the revision petitioner.
It is
perceived from perusal of the order passed by the subordinate court that at the
time of passing of order upon the application of 319 Cr.P.C., while critically
appreciating the first information report, statements of the witnesses recorded
under Section 161 Cr.P.C., and the statement of the complainant recorded before
the court, cognizance has been taken about the offence under Section 498-A of
the Code of Criminal Procedure. I have also perused the file. The complainant
has got indicated the name of her sister-in-law (Nanad) Suman in her complaint
about admonishing her on dowry demands; and during the course of investigations
also, in the statement under section 161 Cr.P.C. of the complainant; witnesses
Jaipal, Savitri Devi, Prem Nath, Hanuman, Brijlal, Kripal Singh, name of the
revision petitioner Suman has been got clearly indicated having included
amongst the persons involved in committing of the offence.
The
statement of the complainant which have been recorded on oath before the court,
therein also, evidence has been adduced against Suman. Apart from these, in the
letters written by the complainant to her parents, instigating her parents by
Suman over the telephone against the complainant, and upon her having return
conduct cruel behaviour with her have been disclosed. On the basis of all of
these facts and the available evidences, prima facie grounds are available for
initiating proceedings under Section 498-A of the Indian Penal Code."
5.
The learned Sessions Judge also considered the argument made on
behalf of the appellant that cognizance ought not to have been taken against
her because she was married much before the marriage of the 6 complainant and
was living with her in-laws at Bikaner, but declined to quash the order of the
learned Judicial Magistrate by observing that prima facie there was sufficient
ground for taking cognizance against the appellant and that she will have full
opportunity to cross-examine the witnesses.
6.
The appellant challenged the revisional order before the High
Court by filing a petition under Section 482 Cr.P.C. but could not convince the
learned Single Judge to interfere with the order passed under Section 319
Cr.P.C.
7.
Shri S.K. Keshote, learned senior counsel appearing for the
appellant argued that after having accepted the negative final report submitted
by the police qua the appellant, the learned Judicial Magistrate was not
entitled to take cognizance against her on the basis of material collected by
the police during investigation. Learned senior counsel emphasized that when the
Investigating Officer did not find any valid ground to implicate the appellant
as an accused and the final report was accepted by the competent court, the
self-same statement made by respondent No.2 under Section 164 Cr.P.C. could not
be made basis for entertaining the application filed under Section 319 Cr.P.C.
He submitted that issue of 7 summons against the appellant is nothing but an
abuse of the process of the court and the High Court committed serious error by
refusing to exercise power under Section 482 Cr.P.C.
8.
Learned counsel for the respondents supported the impugned order and argued
that the High Court did not commit any error by refusing to exercise power
under Section 482 Cr.P.C. because the learned Judicial Magistrate and the
learned Sessions Judge concurrently found that prima facie there was sufficient
material for taking cognizance against the appellant.
8.
We have considered the respective submissions. Section 319 Cr.P.C.
reads as under:- 319. Power to proceed against other persons appearing to be
guilty of offence.--(1) Where, in the course of any inquiry into, or trial of,
an offence, it appears from the evidence that any person not being the accused
had committed any offence for which such person could be tried together with
the accused, the court may proceed against such person for the offence which he
appears to have committed.
(2) Where
such person is not attending the Court he may be arrested or summoned, as the
circumstances of the case may require, for the purpose aforesaid.
(3) Any
person attending the Court although not under arrest or upon a summons, may be
detained by such Court for the 8 purpose of the inquiry into, or trial of, the
offence which he appears to have committed.
(4) Where
the Court proceeds against any person under sub- section (1) then-- (a) the
proceedings in respect of such person shall be commenced afresh, and witnesses
reheard;
9.
subject to the provisions of clause (a), the case may proceed as
if such person had been an accused person when the Court took cognizance of the
offence upon which the inquiry or trial was commenced.
10.
A somewhat similar provision was contained in Section 351(1) of
the Code of Criminal Procedure, 1898 [for short, 1898 Code] under which it was
provided that any person attending a criminal court, although not under arrest
or upon a summons, may be detained by such Court for the purpose of inquiry
into or trial of any offence of which such Court can take cognizance and which,
from the evidence, may appear to have been committed, and may be proceeded
against as if he had been arrested or summoned. Sub-section (2) of Section 351
provided that in such a situation the evidence shall be re-heard in the
presence of the newly added accused. In its 41st Report, the Law Commission
noted that the power conferred upon a criminal court under Section 351 of the
1898 Code could be exercised only if such person happen to be attending the
court and he could then be detained and proceeded against, but there was no
express provision for summoning such a 9 person if he was not present in the
court. The Law Commission recommended that a comprehensive provision be enacted
so that whole case against all known suspects could be proceeded expeditiously
and that cognizance against the newly added accused should be taken in the same
manner as against the other accused.
The
recommendations made by the Law Commission led to incorporation of Section 319
in its present form in Chapter XXIV of Cr.P.C. which contains general
provisions as to inquiries and trials.
11.
Section 319 Cr.P.C. applies to all the Courts including the
Sessions Court. It empowers the Court to add any person, not being the accused
before it, but against whom there appears during trial sufficient evidence
indicating his involvement in the offence, as an accused and direct him to be
tried along with other accused. If such person is not attending the Court, he
can be arrested or summoned. If he is attending the Court, although not under
arrest or upon a summons, he can be detained by such Court for the purpose of
inquiry into, or trial of the offence which he appears to have committed.
Sub-section (4) lays down that where the Court proceeds against any person
under sub-section (1), the proceedings in respect of such person shall be
commenced afresh and witnesses are reheard. A reading of the plain language of
sub-section (1) of Section 1 319 Cr.P.C. makes it clear that a person not
already an accused in a case can be proceeded against if in the course of any
inquiry into or trial of an offence it appears from the evidence that such
person has also committed any offence and deserves to be tried with other
accused. There is nothing in the language of this sub-section from which it can
be inferred that a person who is named in the FIR or complaint but against whom
charge- sheet is not filed by the police, cannot be proceeded against even
though in the course of any inquiry into or trial of any offence the Court
finds that such person has committed any offence for which he could be tried
together with the other accused.
12.
The question whether a Sessions Court can take cognizance against
a person qua whom there is no committal order was considered and answered in
affirmative in Joginder Singh and another v. State of Punjab and another (1979)
1 SCC 345. The facts of that case were that on a complaint made by one Mohinder
Singh, a criminal case was registered at Police Station Dakha against Joginder
Singh, Ram Singh (the two appellants), Bhan Singh, Darshan Singh and Ranjit
Singh. During investigation police found Joginder Singh and Ram Singh to be
innocent and, therefore, charge-sheet was submitted only against the remaining
accused. The learned magistrate committed the three accused to the 1 Sessions
Court. The learned Additional Sessions Judge, Ludhiana framed charges against
the three accused for offences under Sections 452, 308 and 323 IPC read with
Section 34 IPC. In their evidence, Mohinder Singh and Ajaib Singh implicated
both the appellants. Thereupon, the Public Prosecutor filed an application for
summoning the appellants. On behalf of the appellants, it was argued that the
learned Additional Sessions Judge had no jurisdiction or power to summon the
appellants and array them as accused because they had neither been
charge-sheeted nor committed to stand trial. The learned Additional Sessions
Judge negatived the contention of the appellants and directed that they be
impleaded as accused. The High Court dismissed the revision filed by the
appellants.
This
Court noticed the provisions of Sections 193, 207-A and 209 Cr.P.C. and
observed:
It is
true that there cannot be a committal of the case without there being an
accused person before the Court, but this only means that before a case in
respect of an offence is committed there must be some accused suspected to be
involved in the crime before the Court but once the case in respect of the
offence qua those accused who are before the Court is committed then the
cognizance of the offence can be said to have been taken properly by the
Sessions Court and the bar of Section 193 would be out of the way and summoning
of additional persons who appear to be involved in the crime from the evidence
led during the trial and directing them to stand their trial along with those
who had already been committed must be regarded as incidental to 1 such
cognizance and a part of the normal process that follows it; otherwise the
conferral of the power under Section 319(1) upon the Sessions Court would be
rendered nugatory. Further Section 319(4)(b) enacts a deeming provision in that
behalf dispensing with the formal committal order against the newly added
accused. Under that provision it is provided that where the Court proceeds
against any person under sub-section (1) then the case may proceed as if such
person had been an accused person when the Court took cognizance of the offence
upon which the inquiry or trial was commenced; in other words, such person must
be deemed to be an accused at the time of commitment because it is at that
point of time the Sessions Court in law takes cognizance of the offence.
In the
above context it will be useful to refer to a decision of this Court in
Raghubans Dubey v. State of Bihar where this Court has explained what is meant
by taking cognizance of an offence. The appellant was one of the 15 persons
mentioned as the assailants in the first information report. During the
investigation the police accepted the appellant's plea of alibi and filed a
charge-sheet against the others for offences under Sections 302, 201 and 149
IPC, before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate
recorded that the appellant was discharged and transferred the case for inquiry
to another Magistrate, who, after examining two witnesses, ordered the issue of
a non-bailable warrant against the appellant, for proceeding against him along
with the other accused under Section 207-A of the old Code. The order was
confirmed by the Sessions Court and the High Court and in further appeal to
this Court it was held first, that there could be no discharge of the appellant
as he was not included in the charge-sheet submitted before the Magistrate by
the police and, second that the appellant could be proceeded against along with
other accused under Section 207-A Cr PC and this Court confirmed the order of
the Magistrate. One of the contentions urged before this Court was that the
Magistrate had taken cognizance of the offence so far as the other accused were
concerned but not as regards the appellant and with regard to this contention
Sikri, J. (as he then was) observed as follows:
1 In our
opinion, once cognizance has been taken by the Magistrate, he takes cognizance
of an offence and not the offenders; once he takes cognizance of an offence it
is his duty to find out who the offenders really are and once he comes to the
conclusion that apart from the persons sent up by the police some other persons
are involved, it is his duty to proceed against those persons. The summoning of
the additional accused is part of the proceeding initiated by his taking
cognizance of an offence. As pointed out by this Court in Pravin Chandra Mody
v. State of Andhra Pradesh the term `complaint' would include allegations made
against persons unknown. If a Magistrate takes cognizance under Section
190(l)(a) on the basis of a complaint of facts he would take cognizance and a
proceeding would be instituted even though persons who had committed the
offence were not known at that time. The same position prevails, in our view,
under Section 190(l)(b).
It will
thus appear clear that under Section 193 read with Section 209 of the Code when
a case is committed to the Court of Sessions in respect of an offence the Court
of Sessions takes cognizance of the offence and not of the accused and once the
Sessions Court is properly seized of the case as a result of the committal
order against some accused the power under Section 319(1) can come into play
and such Court can add any person, not an accused before it, as an accused and
direct him to be tried along with the other accused for the offence which such
added accused appears to have committed from the evidence recorded at the
trial.
Looking
at the provision from this angle there would be no question of reading Section
319(1) subject or subordinate to Section 193.
The
argument that Section 319 Cr.P.C. excludes from its operation an accused who
has been released by the police under Section 169 Cr.P.C. was rejected by the
Court by making the following observations:
1 The
said expression clearly covers any person who is not being tried already by the
Court and the very purpose of enacting such a provision like Section 319(1)
clearly shows that even persons who have been dropped by the police during
investigation but against whom evidence showing their involvement in the
offence comes before the criminal court are included in the said expression.
13.
The scope of Section 319 Cr.P.C. was considered in Municipal
Corporation of Delhi v. Ram Kishan Rohtagi and others (1983) 1 SCC 1, in the
backdrop of the fact that the High Court had, in exercise of its power under
Section 482 Cr.P.C., quashed the proceedings taken against respondent Nos.1 to
5 of whom respondent No.1 - Ram Kishan Rohtagi was the Manager of the company
engaged in manufacturing Modern Toffees and respondent Nos.2 to 5 were its
Directors. This Court reversed the order of the High Court insofar as
respondent No.1 was concerned, but upheld the same in respect of other accused
and proceeded to observe:
"Although
we uphold the order of the High Court we would like to state that there are
ample provisions in the Code of Criminal Procedure, 1973 in which the Court can
take cognizance against persons who have not been made accused and try them in
the same manner along with the other accused. In the old Code, Section 351
contained a lacuna in the mode of taking cognizance if a new person was to be
added as an accused. The Law Commission in its 41st Report (para 24.81)
adverted to this aspect of the law and Section 319 of the present Code gave
full effect to the recommendation of the Law Commission by removing the 1
lacuna which was found to exist in Section 351 of the old Code."
The Court
then referred to the judgment in Joginder Singh and another v. State of Punjab
and another (supra) and held:
"In
these circumstances, therefore, if the prosecution can at any stage produce
evidence which satisfies the court that the other accused or those who have not
been arrayed as accused against whom proceedings have been quashed have also
committed the offence the Court can take cognizance against them and try them
along with the other accused. But, we would hasten to add that this is really
an extraordinary power which is conferred on the court and should be used very
sparingly and only if compelling reasons exist for taking cognizance against
the other person against whom action has not been taken."
14.
In Lok Ram v. Nihal Singh and another (2006) 10 SCC 192, the Court
examined the correctness of the direction given by the High Court for
impelading the appellant as an accused in terms of Section 319 Cr.P.C.
The facts
of that case were that two daughters of Nihal Singh (the complainant) were
married to two sons of the appellant - Lok Ram. One of the daughters of Nihal
Singh, namely, Saroj died on 14.9.2001. Soon thereafter, Nihal Singh filed
complaint at Police Station Fatehabad (Haryana) alleging commission of offence
under Section 406 read with Section 34 IPC. During investigation, the appellant
claimed that he was serving in a school at the time of the death of Saroj. His
plea was 1 accepted by the Investigating Officer and he was not charge-sheeted.
During
trial, the complainant filed an application under Section 319 Cr.P.C. By an
order dated 6.9.2002, the learned Sessions Judge rejected the application. That
order was reversed by the High Court and a direction was given to the trial
court to proceed against the appellant by summoning him. Before this Court, it
was argued that the appellant could not be summoned under Section 319 Cr.P.C.
because even though he was named in the FIR as an accused, the police did not
find any evidence against him and was not charge-sheeted. While rejecting the
argument, the Court referred to the judgments in Joginder Singh and another v. State
of Punjab and another (supra), Municipal Corporation of Delhi v. Ram Kishan
Rohtagi and others (supra), Michael Machado and another v. Central Bureau of
Investigation and another (2000) 3 SCC 262, and observed:
"On
a careful reading of Section 319 of the Code as well as the aforesaid two
decisions, it becomes clear that the trial court has undoubted jurisdiction to
add any person not being the accused before it to face the trial along with the
other accused persons, if the court is satisfied at any stage of the proceeding
on the evidence adduced that the persons who have not been arrayed as accused
should face the trial. It is further evident that such person, even though had
initially been named in the FIR as an accused, but not charge- sheeted, can
also be added to face the trial. The trial court can take such a step to add
such persons as accused only on the basis of evidence adduced before it and not
on the basis 1 of materials available in the charge-sheet or the case diary,
because such materials contained in the charge-sheet or the case diary do not
constitute evidence. Of course, as evident from the decision in Sohan Lal v.
State of Rajasthan, the position of an accused who has been discharged stands
on a different footing."
Power
under Section 319 of the Code can be exercised by the court suo motu or on an
application by someone including the accused already before it. If it is
satisfied that any person other than the accused has committed an offence he is
to be tried together with the accused. The power is discretionary and such
discretion must be exercised judicially having regard to the facts and
circumstances of the case. Undisputedly, it is an extraordinary power which is
conferred on the court and should be used very sparingly and only if compelling
reasons exist for taking action against a person against whom action had not
been taken earlier. The word "evidence" in Section 319 contemplates
the evidence of witnesses given in court.
Under
sub-section (4)(b) of the aforesaid provision, it is specifically made clear
that it will be presumed that newly added person had been an accused person
when the court took cognizance of the offence upon which the inquiry or trial
was commenced. That would show that by virtue of sub- section (4)(b) a legal
fiction is created that cognizance would be presumed to have been taken so far
as newly added accused is concerned."
(emphasis
supplied)
15.
In view of the settled legal position as above, we hold that a
person who is named in the first information report or complaint with the
allegation that he/she has committed any particular crime or offence, but
against whom the police does not launch prosecution or files charge-sheet or
drops the case, can be proceeded against under Section 319 Cr.P.C. if 1 from
the evidence collected/produced in the course of any inquiry into or trial of
an offence, the Court is prima facie satisfied that such person has committed
any offence for which he can be tried with other accused. As a corollary, we
hold that the process issued against the appellant under Section 319 Cr.P.C.
cannot be quashed only on the ground that even though she was named in the
complaint, the police did not file charge- sheet against her.
16.
Before proceeding further, we deem it proper to observe that in
some of the decisions, this Court has emphasized that discretion under Section
319 Cr.P.C. should be exercised cautiously and not as a matter of routine -
Michael Machado v. Central Bureau of Investigation (supra), Anil Singh and
another v. State of Bihar and another (2006) 13 SCC 421 and Mohd. Shafi v.
Mohd. Rafiq and another (2007) 14 SCC 544. In Michael Machado's case, the Court
was called upon to consider whether the Metropolitan Magistrate was justified
in summoning the appellants under Section 319 Cr.P.C. at the penultimate stage
of the trial. The first appellant in that case was the Chief Manager of Malad
Branch of Corporation Bank at Mumbai and the second appellant was Chief Manager
of Wadala Branch (Mumbai). On a complaint lodged by Deputy Manager of the bank
with the allegation that the bank has been 1 defrauded by certain persons
resulting in financial loss to the tune of Rs.50 lacs, a first information report
was registered by the police. After investigation two charge sheets were filed
before Metropolitan Magistrate against 4 persons. After perusing the charge
sheets, the Metropolitan Magistrate felt that the CBI, which had conducted the
investigation, was shielding the appellants. He, therefore, sought explanation
from the CBI.
After
considering the explanation, the Metropolitan Magistrate opined that the
Investigating Officer had committed an offence under Section 219 IPC and issued
notice to him. Simultaneously, the learned Metropolitan Magistrate decided to
implead the appellants as additional accused. That order was challenged by the
concerned Investigating Officer. The High Court quashed the order but left it
open to the Metropolitan Magistrate to take necessary action under Section 319
Cr.P.C. at an appropriate stage.
Thereafter,
the trial commenced against the four accused and as many as 49 witnesses were
examined by the prosecution. Till that stage, learned Metropolitan Magistrate
did not consider it necessary to implead the appellants as accused. However,
when statements of the remaining three witnesses were recorded, he passed a
brief order summoning the appellants. The High Court upheld the order of the
Metropolitan Magistrate. This Court quashed the summoning order by observing
that though evidence of last 3 witnesses may create some suspicion against the
2 appellants but that was not sufficient for convicting the appellants for the
offence of conspiracy. The Court also felt that there was no warrant for
wasting the massive evidence collected by the trial Court against the 4
accused. In the course of judgment, the Court made the following observation:
"The
basic requirements for invoking the above section is that it should appear to
the court from the evidence collected during trial or in the inquiry that some
other person, who is not arraigned as an accused in that case, has committed an
offence for which that person could be tried together with the accused already
arraigned. It is not enough that the court entertained some doubt, from the
evidence, about the involvement of another person in the offence. In other
words, the court must have reasonable satisfaction from the evidence already
collected regarding two aspects. First is that the other person has committed
an offence. Second is that for such offence that other person could as well be
tried along with the already arraigned accused.
But even
then, what is conferred on the court is only a discretion as could be discerned
from the words "the court may proceed against such person". The
discretionary power so conferred should be exercised only to achieve criminal
justice. It is not that the court should turn against another person whenever
it comes across evidence connecting that other person also with the offence. A
judicial exercise is called for, keeping a conspectus of the case, including
the stage at which the trial has proceeded already and the quantum of evidence
collected till then, and also the amount of time which the court had spent for
collecting such evidence. It must be remembered that there is no compelling
duty on the court to proceed against other persons."
17.
In the light of the above, we shall now consider whether the
learned Judicial Magistrate was justified in taking cognizance against the
appellant under Section 498-A IPC or the satisfaction recorded by him for
issuing process against the appellant under Section 319 Cr.P.C. is vitiated by
any legal infirmity and the learned Sessions Judge and High Court committed an
error by refusing to quash the order passed by him. In the complaint filed by her,
respondent No.2 alleged that after one week of the marriage, her mother-in-law
- Rukmani Devi and nanad - Suman (the appellant herein) told her that in the
marriage, items like scooter, fridge, air- conditioner etc. have not been given
and the marriage party was not served well; that mother-in-law - Rukmani Devi
and nanad - Suman forcibly took the complainant to a lady doctor and got
implanted Copper-T so that she may not give birth to any child; that nanad -
Suman started instigating the husband of the complainant either on phone or
otherwise and thereupon, he not only used to assault, but also humiliate and
torture the complainant; that on 7.4.2002 the husband gave beating with the
belan and nanad - Suman snatched her hair and forcibly removed the rings. In
her statement made before the police under Section 161 Cr.P.C., respondent No.2
reiterated all the allegations. The father and mother of respondent No.2 and 4
other persons, whose statements were recorded under Section 161 Cr.P.C.,
clearly spelt out the role played by the 2 appellant in harassing respondent
No.2 and instigating her husband to inflict torture upon her. Despite this, the
police did not file charge-sheet against the appellant thinking that she had no
occasion to make demand for dowry or harass respondent No.2 because she was
living with her husband, Mahendra Pal at Bikaner. In her statement recorded
under Section 164 Cr.P.C., respondent No.2 again made specific allegations
against the appellant. While deciding the application filed under Section 319
Cr.P.C., the learned Judicial Magistrate noticed the allegations made by
respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani Devi and
sister-in-law, Suman had castigated her for insufficient dowry and subjected
her to physical and mental harassment and that the sister- in-law had
instigated her husband to inflict physical torture, which were supported by the
statements recorded by the police under Section 161 Cr.P.C. The learned
Judicial Magistrate further noted that in her statement under Section 164
Cr.P.C., the complainant has clearly spelt out the role played by the appellant
in the matter of demand of dowry, physical and mental harassment and the fact
that the complainant had made a specific mention about this in the letters written
to her parents and opined that prima facie case was made out for issuing
process against the appellant.
Therefore,
it must be held that the learned Judicial Magistrate had objectively considered
the entire matter and judiciously exercised 2 discretion under Section 319
Cr.P.C. for taking cognizance against the appellant. Although at one stage, the
learned Sessions Judge allowed the revision filed by the appellant and declared
that in view of the bar of limitation contained in Section 468 Cr.P.C., the
learned Judicial Magistrate could not have taken cognizance against the
appellant, the said order was set aside by the High Court and the matter was
remitted for fresh disposal of the revision petition. In the post remand order
passed by him, the learned Sessions Judge independently examined the entire
record and held that prima facie case was made out for initiating proceedings
against the appellant herein under Section 498-A IPC. Therefore, it is not
possible to agree with the learned senior counsel for the appellant that issue
of summons against the appellant amounts to abuse of the process of the Court.
18.
In the impugned order, the High Court has broadly referred to the
factual matrix of the case and held that the orders passed by the learned Judicial
Magistrate and Sessions Judge do not suffer from any illegality or perversity
warranting interference under Section 482 Cr.P.C. The approach adopted by the
High Court is in consonance with the law laid down by this Court in State of
Haryana v. Bhajan Lal (1992) Suppl.(1) SCC 335, C.B.I. v. Ravi Shankar
Srivastava (2006) 7 SCC 188, R. 2 Kalyani v. Janak C. Mehta (2009) 1 SCC 516
and Mahesh Choudhary v. State of Rajasthan (2009) 4 SCC 439.
19.
In the result, the appeal is dismissed.
20.
It is needless to say that if the trial Court has not proceeded
with the case on account of pendency of the petition filed by the appellant in
this Court, the concerned Court shall now proceed with the trial and decide the
matter expeditiously.
........................................J. [R.V. RAVEENDRAN]
......................................J.
Back
