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2007 DIGILAW 332 (JHR)

Jaibun Nisha v. State of Jharkhand

2007-04-18

D.G.R.PATNAIK

body2007
ORDER D.G.R. Patnaik, J 1. On 18.4.2007 Petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, praying for quashing the order dated 8.3.2007 passed by the learned 5th Additional Sessions Judge, Jamshedpur in Sessions Trial No. 310 of 2006, whereby the learned trial Court, in exercise of its powers under Section 319, Cr.P.C., summoned the petitioners to face trial in the case before it vide Sessions Trial No. 310-A of 2006. 2. Heard learned Counsel for the petitioners, learned Counsel for the State and learned Counsel for the opposite-party No. 2. 3. Facts of the case in brief is that a case vide Mango (Azad Nagar) P.S. Case No. 115 of 2006 dated 18.3.2006 was registered for the offence under Section 304B, IPC against certain accused persons named in the FIR. The allegation contained in the FIR were inter-alia, that the informant's niece was married to one Md. Shamim (accused No. 1) on 20.11.2005, but soon after the marriage, the girl began suffering torture, ill-treatment and cruelty at the hands of her husband and her in-laws on account of non-fulfillment of their demand of a sum of Rs. 1.00 lac by way of dowry. A sum of Rs. 5,000/- was paid to the in laws of the girl on 8.3.2006, but despite such payment, torture on her continued unabated. It is alleged that apprehending danger to her life and person, the girl requested her mother on 17.3.2006 to take her away from the matrimonial house and had complained that her mother-in-law and sister-in-law besides her husband and other members of her matrimonial family have made her life miscreable and due to which, she had even contemplated to commit suicide. On the same day at about 5.00 p.m. the informant received information that the deceased had hanged herself to death from the ceiling fan. Claiming that the husband and the members of his family had aided and abetted the deceased to commit suicide, the informant lodged the aforementioned FIR which was initially registered against four persons as accused. On concluding the investigation, the investigating officer submitted charge-sheet recommending trial for the alleged offence only against the husband of the deceased, namely, Md. Shamim. Cognizance of the offence was accordingly taken against the sole accused Md. On concluding the investigation, the investigating officer submitted charge-sheet recommending trial for the alleged offence only against the husband of the deceased, namely, Md. Shamim. Cognizance of the offence was accordingly taken against the sole accused Md. Shamim and after commitment of the case to the Court of Sessions, trial had commenced before the learned Court below vide S.T. No. 310 of 2006. As many as 11 witnesses were examined by the prosecution including the maternal grandfather of the deceased. These witnesses in their respective depositions had purportedly testified against the present petitioners also. On the basis of the incriminating evidences deposed by the witnesses against the present petitioners, the informant/opposite-party No. 2 prayed before the trial Court to summon the present petitioners also as accused directing them to face trial in the case. Rejoinder to the prayer of the informant was filed by the accused Md. Shamim who is facing trial. The learned trial Court however overruled the objection of the accused Md. Shamim and in exercise of its powers under Section 319, Cr.P.C., had proceeded to summon the present petitioners directing them to appear and face trial in the case for the said offence. 4. Learned Counsel for the petitioners has vehemently argued that the trial Court has passed the impugned order in purported exercise of its powers under Section 319, Cr.P.C., without application of judicial mind and without appreciating the evidences on record in proper perspective. Learned Counsel explains that the prosecution has claimed that P.W. 2, P.W. 5, P.W. 6, P.W. 7 and P.W. 8 have supported the prosecution's case and have deposed against the present petitioners, but even on a cursory glance at the depositions of the aforementioned witnesses, it would transpire that all of them are near relations of the deceased and, therefore, highly interested and none of them has made any direct or specific allegation against the present petitioners in respect of the offence alleged. Learned Counsel explains that the statements of these witnesses are vague and unspecific and do not throw any light whatsoever to suggest even remotely that the petitioners were involved in causing death of the deceased or that they are in any manner responsible for the suicide committed by the deceased. Learned Counsel explains that the statements of these witnesses are vague and unspecific and do not throw any light whatsoever to suggest even remotely that the petitioners were involved in causing death of the deceased or that they are in any manner responsible for the suicide committed by the deceased. Learned Counsel explains further that none of the witnesses has alleged any such act on the part of the petitioners which could be construed as a direct or proximate cause for the death of the deceased and, therefore, the petitioners cannot be subjected to the rigours of the trial merely on the presumption that they being members of the matrimonial family of the deceased, are also deemed to be responsible for the death of the deceased. 5. Refuting the entire grounds and arguments advanced by the learned Counsel for the petitioners, learned Counsel for the State as also learned Counsel for the opposite-party No. 2 submits that there is no infirmity or impropriety in the impugned order of the learned Court below since it was passed by the learned trial Court after considering the evidences on record and finding a prima facie case for proceeding against the petitioners also. 6. The controversy raised by the petitioners relates to the powers of the Court under the provisions of Section 319, Cr.P.C. and the limitation of such powers. Section 319, Cr.P.C. reads as follows: 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 has 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. The above provision implies that the Court is not empowered to take cognizance of any fresh offence, if an accused is impleaded, by invoking Section 319, Cr.P.C. The newly added accused can be tried for the offence for which cognizance is already taken against other accused. The above provision implies that the Court is not empowered to take cognizance of any fresh offence, if an accused is impleaded, by invoking Section 319, Cr.P.C. The newly added accused can be tried for the offence for which cognizance is already taken against other accused. On bare reading of the aforesaid provisions, it would appear that it gives ample powers to the Court to take cognizance and add any person, at any stage, sought to be tried along with the other accused persons. However, the powers vested under this section being extraordinary powers and are meant to be used sparingly only in compelling circumstances. It can be exercised only if it appears from the evidence recorded by the Court that any person other than the person facing trial, has committed an offence. Thus, the powers can be exercised even against the person whose name has been dropped by the investigating officer or who was not been charge-sheeted. 7. When the order passed by the trial Court under Section 319, Cr.P.C. is challenged and is sought to be quashed under the inherent powers of the High Court, it cannot be expected of the High Court to sit in judgment over judicial pronouncements in order to find out their correctness or sufficiency of materials on which they are based. 8. In the instant case, as it appears from the impugned order as also from the instant application filed by the petitioners that the trial Court had considered the evidences of the material witnesses examined by the prosecution at the trial conducted against the accused Md. Shamim and has observed that the witnesses have deposed against the present petitioners suggesting their involvement and complicity in respect of the offence under Section 304B, IPC of which, cognizance was initially taken by the Chief Judicial Magistrate. The impugned order also indicates that the trial Court by assigning reasons, has recorded its satisfaction that the evidences prima facie do make out a definite circumstances calling upon the petitioners to face trial for the aforesaid offence. The petitioners have questioned the correctness and insufficiency of the materials on which the impugned order is based. This Court in exercise of its inherent powers would certainly not sit in judgment over the judicial order passed by the learned trial Court to find out its correctness or insufficiency of materials. 9. The petitioners have questioned the correctness and insufficiency of the materials on which the impugned order is based. This Court in exercise of its inherent powers would certainly not sit in judgment over the judicial order passed by the learned trial Court to find out its correctness or insufficiency of materials. 9. The impugned order does not indicate that the powers under Section 319, Cr.P.C. was exercised by the trial Court on mere suspicion or in any manner beyond the authority vested under the law. 10. In the light of the above discussions, I do not find any sufficient ground to interfere with the impugned order of the learned Court below. This application is accordingly dismissed. Application dismissed.