Case: Suman Vs. State Of Rajasthan

3. The appellants 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, 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.2Smt. 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 Kumarhusband of respondent No.2, Rukmani Deviw and Ram Kumar @ Rampratap. 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 Section498AIPC. 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 Section498AIPC. The revisional order was set aside by the learned Single Judge of the High 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.C4. 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:"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 Section498Aof the Code of Criminal Procedure. I have also perused the file. The complainant has got indicated the name of herw (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 Section498Aof 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 complainant and was living with hers 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 toe the witnesses6. 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.

Reasoning: 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 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 trials11. 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.n (4) lays down that where the Court proceeds against any person undern (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. A reading of the plain language ofn (1) of Section 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 thisn from which it can be inferred that a person who is named in the FIR or complaint but against whomt 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 accusedIt 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 19315. 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 filest or drops the case, can be proceeded against under Section 319 Cr.P.C. if 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 filet against her17. In the light of the above, we shall now consider whether the learned Judicial Magistrate was justified in taking cognizance against the appellant under Section498AIPC 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, herRukmani Devi and nanadSuman (the appellant herein) told her that in the marriage, items like scooter, fridge, airconditioner etc. have not been given and the marriage party was not served well; thatRukmani Devi and nanadSuman forcibly took the complainant to a lady doctor and got implantedT so that she may not give birth to any child; that nanadSuman 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 nanadSuman 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 appellant in harassing respondent No.2 and instigating her husband to inflict torture upon her. Despite this, the police did not filet 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, Smt. Rukmani Devi and, Suman had castigated her for insufficient dowry and subjected her to physical and mental harassment and that thew 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 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 Section498AIPC. 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 Court18. 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. Kalyani v. Janak C. Mehta (2009) 1 SCC 516  and Mahesh Choudhary v. State of Rajasthan (2009) 4 SCC 439.