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
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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
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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
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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
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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
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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
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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
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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:
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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:
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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
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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
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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
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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."
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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
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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
