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2009(7) Supreme 305
SUPREME COURT OF INDIA
R.V. Raveendran and G.S. Singhvi, JJ.
Suman — Appellant
versus
State of Rajasthan and another — Respondents
Criminal Appeal No. 2120 of 2009
(Arising out of S.L.P. (Crl.) No.2972 OF 2008)
Decided on : 13-11-2009
Code of Criminal Procedure,1973 – Section 319 – Scope and ambit of – 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 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- Process issued against appellant under Section 319 Cr.P.C. could not be quashed only on the ground that even though she was named in the complaint, the police did not file charge – sheet against her (Para 15)
Facts of the Case :
A Complaint was filed by respondent2 against her husband and inlaws 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. An FIR was registered for offences under Sections 406, 498A, 354,377 and 323 IPC against husband and in laws of respondent2. Insofar as the appellant was concerned, Investigating Officer opined that she was innocent because she was living at Bikaner with her husband and had not caused harassment to respondent 2 or made demand for dowry. However an Order was passed by Magistrate taking cognizance of offence u/s 498 A of IPC and issuing process against appellant u/s 319 of Crpc on an application filed by respondent2.Present appeal has been filed challenging said order.
Findings of the Court :
In the complaint filed by her, respondent No.2 alleged that after one week of the marriage,her mother-in-law and nanad appellant 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 and nanad 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 – 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.Respondent2 alleged that on 7.4.2002 husband gave beating with the belan and nanad snatched her hair and forcibly removed rings.While deciding the application filed under Section 319 Cr.P.C., Judicial Magistrate noticed the allegations made by respondent No.2 in the complaint against her mother-in-law, and sister-in-law.Judicial Magistrate had objectively considered the entire matter and judiciously exercised discretion under Section 319 Cr.P.C. for taking cognizance against the appellant. It was not possible to agree with contention of appellant that issue of summons against her amounted to abuse of process of Court. In the impugned order, High Court broadly referred to the factual matrix of the case and held that the orders passed by Judicial Magistrate and Sessions Judge not suffered from any illegality or perversity warranting interference under Section 482 Cr.P.C.
Key Points: - Discretion under Section 319 Cr.P.C. must be exercised cautiously and not as a matter of routine (!) (!) . - A person named in a complaint or FIR, against whom the police do not file a charge-sheet, can be proceeded against under Section 319 Cr.P.C. if the court is prima facie satisfied that such person committed an offence (!) (!) . - Process under Section 319 Cr.P.C. cannot be quashed merely because the police did not charge the person; it is permissible when supported by evidence collected during trial (!) (!) . - The court must be satisfied that (i) the other person has committed an offence, and (ii) that person could be tried together with the accused already before the court (!) . - The power is discretionary and extraordinary, to be used sparingly and only with compelling reasons (!) (!) . - The court may take cognizance suo motu or on application, and may add a person as accused even if initially not charge-sheeted, based on evidence at trial (!) (!) . - The principle applies regardless of whether a person was discharged by police or appears later in the trial (!) (!) . - The approach of the High Court in upholding the magistrate’s order is consistent with settled case law (!) . - The appeal is dismissed, and the trial is to proceed expeditiously if previously stayed (!) (!) .
JUDGMENT
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 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 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 Judic
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