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Home > Judiciary > Family Law > Suman v/s State of Rajasthan and another



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Suman v/s State of Rajasthan and another

Posted on 23 November 2009 by Kamal Grover

Court

S.C



Brief

If police remove name of an accuse even then person can file an application u/s 319 for adding the name of that accuse.



Citation

Recent judgment on 13/11/09 and still not cited



Judgement

J U D G M E N T

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 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

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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:-

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"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

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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.



9. 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;
(b) 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."

2


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.
[G.S. SINGHVI]
New Delhi
November 13, 2009




Tags :- suman v s state rajasthan




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2 Comments for this Judiciary



Adinath@Avinash Patil

Adinath@Avinash Patil

Wrote on 14 December 2009

EXLLENT JUDGMENT



ram murti (advocate)

ram murti (advocate)

Wrote on 02 December 2009

thanks.ram murti













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