IMPORTANT POINT
The court ruled that the trial court erred in taking cognizance against the petitioner without sufficient evidence, emphasizing the need for strong proof under Section 319 Cr.P.C.

ORDER :

Manoj Kumar Garg, J.

1. Instant criminal revision petition has been filed by the petitioners against the order dated 22.02.2023 passed by the learned Additional Sessions Judge (WA Act Cases) Bikaner by which the trial court took cognizance against the petitioner for offence under Sections 498A, 406, 304B/302 IPC.

2. Brief facts of the case are that the complainant respondent no.2 lodged a FIR against the accused persons including the petitioner for demand of dowry and cruelty for offence under Sections 498A, 406, 304B and 302 IPC. The police after investigation submitted chargesheeted only against the husband and other accused persons were not arrayed as an accused. The investigation against the present petition was kept pending under Section 173(8) Cr.P.C. but later on investigation was completed and a closure report was submitted before the trial court.

3. During course of trial, the brother of deceased was examined as PW/1, mother of deceased Geeta Kanwar as PW/2. Thereafter, the complainant filed an application under Section 319 Cr.P.C. for taking cognizance against the present petitioner. The said application was allowed by the trial court vide order dated 22.02.2023 and the trial court took cognizance against the petitioner for offence under Sections 498A, 406, 304B/302 IPC.

4. Learned counsel for the petitioner submits that the court below has committed grave error of law in taking cognizance against the petitioner as the police after thorough investigation had not arrayed the petitioner as an accused. It is submitted that the daughter of petitioner was married to brother of deceased and deceased was married to son of the petitioner. Therefore, there was no possibility of any cruelty, nor there was any demand made by the petitioner. It is argued that the police after taking into consideration the entire evidence and statement of witnesses, had filed negative FR against the petitioner, therefore, the order of the Court below taking cognizance against the petitioner is bad in the eye of law and deserves to be set aside.

5. Per contra, counsel for the respondent no.2 submits that the witnesses in their statement have levelled against the present petitioner who is mother-in-law of deceased with regard to demand of dowry and cruelty, therefore, the court below has rightly allowed the application filed by the respondent no.2 under Section 319.P.C and taken cognizance against the petitioner.

6. I have heard rival contention of the parties and carefully gone through the record.

7. Admittedly, the police after thorough investigation had submitted negative FR against the present petitioner. In the FR filed by the police, the police had referred to the ten grounds for exonerating the petitioner. It has been stated by the police that since the daughter of petitioner was married to brother of deceased and deceased was married to son of the petitioner, therefore, had there been any cruelty or demand of dowry to the deceased, same treatment would have been given to daughter of petitioner. Further, there was gross delay in lodging the FIR as the FIR was lodged after a period of nine days of death of deceased. The police in the closure report has also mentioned that as per postmortem report the death of deceased was caused by asphyxia due to antemortum drowning in water and there were no injury marks on the body deceased. The panchnama and other documents bear the signature of complainant Indradan and no allegation with regard to cruelty or demand of dowry was made by the complainant. It has been further mentioned that earlier altercations took place between the deceased and her husband number of time and the relationship between them was not cordial. Thus, no overt act has been assigned to present petitioner. In the opinion of this Court, the court below has fallen into an error in allowing the application filed by the complainant under Section 319 Cr.P.C. and taking cognizance against the petitioner.

8. The constitutional Bench of Hon’