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2008 DIGILAW 1416 (RAJ)

Bhanwar Lal v. State of Rajasthan

2008-05-20

MOHAMMAD RAFIQ

body2008
Honble RAFIQ, J.—This revision petition is directed against the order dated 8.9.1999 passed by the learned Sessions Judge, Karauli whereby cognizance for offences under Sections 304, 498- A, 201 and 202 of the IPC was taken against the accused petitioners. (2). Factual matrix giving rise to this petition may be first noticed briefly. One Rameshwar Prasad Sharma lodged a written report with Police Station Karauli at 12.35 PM on 29.6.1997 alleging therein that his daughter, Babli @ Sunita, was married to Hemraj S/o accused petitioner Bhanwar Lal on 19.11.1996. The informant gave cash and articles in dowry. When, however, his daughter returned from the house of her in-laws to the parents soon after marriage, she told that her husband, father-in-law, mother-in-law, brother-in-law and one sister-in-law used to harass her for payment of dowry and also gave beating. Whenever thereafter Sunita came to her parents to Hindaun, every now and then she would narrate the same story to the wife of the informant namely Smt. Savitri Devi and his son Dev Vrat and his elder daughter Pushpa. It was alleged that Hemraj came to their house in the month of May, 1996 and he demanded a sum of Rs. 30,000/- as dowry which the informant refused to give. Hemraj that time threatened the informant that this would not be good for their daughter. A fortnight thereafter, the daughter of the informant also came to Hindaun and told her parents that her in- laws used to torture her for dowry. It was thereafter that Hemraj came to the place of the informant in the month of July and that time he told him that they should give five articles of Silver and a sum of Rs. 25,000/- in cash, clothes and one gold chain of two tolas at the time of ceremony of the birth of child to their daughter. The informant that time assured him that he would give whatever was possible for him. It was alleged that Hemraj at that time extended a threat and took his daughter to Karauli. It was thereafter that the complainant received an information at about 3-4 P.M., a day before the date of lodging of FIR that his daughter has been killed. It was alleged that her in-laws have cremated her dead body without even informing the complainant and his family. It was thereafter that the complainant received an information at about 3-4 P.M., a day before the date of lodging of FIR that his daughter has been killed. It was alleged that her in-laws have cremated her dead body without even informing the complainant and his family. It was on the day of lodging of FIR that one Bhanwar Lal informed the complainant that he had heard that death of his daughter had taken place in mysterious circumstances. Complainant also enquired from the in-laws of the daughter, but they were not in a position to give a satisfactory explanation as to how his daughter died. (3). The police upon investigation initially filed challan only against accused Hemraj, husband of the deceased, on 17.9.97 and Investigating Officer in the charge-sheet filed before the Court mentioned that the investigation as regards the other accused was kept pending under Section 173(8) of the Code of Criminal Procedure. It was thereafter that the Investigating Officer filed challan against the petitioners on 16.10.1998 and the learned Court of Sessions took cognizance of the offences referred to above against the accused petitioners vide his order dated 8.9.1999. In course of time, trial against accused Hemraj was completed and he was convicted by judgment of the trial Court dated 25.3.98 for offences u/S. 304-B, 498-A, 201 and 202 IPC and was sentenced to undergo eight years rigorous imprisonment for offence u/S. 304-B with fine of Rs. 500/- and three years rigorous imprisonment for offence u/S. 498A with fine of Rs. 1,000/- and two years rigorous imprisonment for offence u/S. 200 IPC with fine of Rs. 1,000/- and six months rigorous imprisonment for offence u/S. 201 IPC with fine of Rs. 500/-. All the sentences were ordered to be run concurrently. The accused Hemraj however preferred appeal against his conviction and sentence passed against him and the sentence was suspended by order of this Court in his appeal. This revision petition, in these circumstances, was filed by the accused petitioners as far back as 21.10.1999 challenging correctness, and proputenty of the order taking cognizance. (4). Shri A.K. Gupta, learned counsel appearing for the accused- petitioners has argued that at the time of filing challan against co-accused Hemraj when the matter against the accused petitioners was kept pending under Section 173(8) Cr.P.C. for further investigation, Investigating Officer was required to have accordingly conducted further investigation. (4). Shri A.K. Gupta, learned counsel appearing for the accused- petitioners has argued that at the time of filing challan against co-accused Hemraj when the matter against the accused petitioners was kept pending under Section 173(8) Cr.P.C. for further investigation, Investigating Officer was required to have accordingly conducted further investigation. He could thereafter file challan against the non-petitioner only or production of evidence which he did not come to possess when he originally filed challan against co-accused Hemraj. The fact however is that the Investigating Officer did not record any additional statement of any person and did not collect any other material or evidence whatsoever. When Investigating Agency was satisfied at the time of filing challan against co-accused Hemraj on 17.9.1997, that there was no evidence against the accused petitioners herein, there was no occasion for it then to file challan subsequently on 16.10.1998 against the accused-petitioners on the basis of very same material. It was argued that even if the evidence available on record is taken on its face value, no charge for the alleged offences can be framed against the accused-petitioners. Learned counsel in support of his arguments cited the judgment of this Court in Nooruddin & Ors. vs. State of Raj. 1999(1) Crimes 493 and a judgment of Patna High Court in Resham Lal Yadav & Ors. vs. State of Bihar - 1981 Cri.L.J. 976. Learned counsel also referred to the definition of `dowry in Section 2 of the Dowry Prohibition Act, 1961 and argued that according to said provision, there must exist evidence of agreement between the parties to give any property or valuable security either directly or indirectly at or before or any time after the marriage in connection with marriage. It was however argued that customary gifts given at the time of birth of the first male child cannot be treated as dowry. Referring to the statements of some of the witnesses recorded u/S. 161 Cr.P.C., learned counsel further argued that there was no evidence of cruelty meted out to the deceased Babli @ Sunita soon before her death as per the requirement of Section 304B IPC. Learned counsel referred to the statements of brother Neeraj, mother Savitri Devi, sister Pushpa, father (informant) Rameshwar Prasad Sharma and certain other persons. Learned counsel referred to the statements of brother Neeraj, mother Savitri Devi, sister Pushpa, father (informant) Rameshwar Prasad Sharma and certain other persons. Learned counsel argued that if their statements are taken at the face value, they do not make out any case of cruelty soon before the death of deceased. Learned counsel in this connection cited the judgment of Supreme Court in Satvir Singh & Ors. vs. State of Punjab & Anr. - AIR 2001 SC 2828 . Shri A.K. Gupta also argued that cognizance against the accused petitions could be taken only by the Court of Sessions after the evidence of prosecution has been recorded at the stage of Section 309 of Cr.P.C. The Magistrate had no jurisdiction to take cognizance against the accused petitioners on the basis of very same material about the sufficiency of which the investigating agency itself was not satisfied while filing challan against the co-accused Hemraj. (5). Shri B.S. Chhaba, learned Public Prosecutor and Shri O.P. Agarwal, learned counsel for the complainant opposed the petition and argued that there was prima facie evidence against the accused petitioners not only in the statements of aforesaid witnesses but also certain other witnesses recorded u/S. 161 namely; Jhaffar Khan, Ayyub, Rambabu Sharma, Bhoor Singh, Kailash, Uganti Devi, Girraj Lal Gupta, Chhittarmal, Smt. Chiroji. It was argued that keeping the investigation pending under Section 173(8) merely tentamounts to intimating the Court about the intention of the investigation agency to further investigate the matter. It is therefore not correct to assume there from that there was no evidence against the accused petitioners. It only meant that the investigating agency wanted to collect some additional and more material to strengthen the case of the prosecution. Even if the challan is filed on the basis of already collected evidence, the Court is not precluded from taking cognizance against the accused it it is otherwise satisfied about the existing of prima facie case against the said accused on the basis of available material. Learned counsel argued that even as per the statement of many of the aforesaid witnesses recorded during trial, sufficient evidence has come on record showing involvement of the accused petitioners. It was argued that ever since the cognizance in this matter was taken on 8.9.1999, the matter has remained pending before this Court because of summoning of records. Learned counsel argued that even as per the statement of many of the aforesaid witnesses recorded during trial, sufficient evidence has come on record showing involvement of the accused petitioners. It was argued that ever since the cognizance in this matter was taken on 8.9.1999, the matter has remained pending before this Court because of summoning of records. It was therefore prayed that the revision petition be dismissed and the trial Court be directed to conclude the trial against the accused petitioners in an expeditious manner. (6). There does not appear to be much of the contest on the fact that the investigating agency in the present case when it initially filed challan against husband of the deceased, Hemraj on 17.9.1997, kept the matter pending against the accused petitioners for further investigation by invoking Section 173(8) of the Code of Criminal Procedure. Sub-section 8 of Section 178 provides as under: "173 (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." (7). The aforesaid provision recognizes the power of investigating agency to undertake further investigation in respect of an offence after it has forwarded its report to a Magistrate who is empowered to take cognizance on a police report as prescribed by sub-section (2) of Section 173. A co-ordinate bench of this Court in Nooruddin, supra held that `titamba (supplementary) statements recorded after three years of earlier statements of prosecution witnesses could not be treated as further investigation and a supplementary charge sheet could not be filed without making any further investigation and without obtaining further evidence. It was therefore not permissible for the investigating agency to file charge sheet and therefore the charge sheet filed by the police was quashed. It was therefore not permissible for the investigating agency to file charge sheet and therefore the charge sheet filed by the police was quashed. The judgment of Patna High Court in Resham Lal Yadav, supra, which has been cited in the present case too, was also relied on by the accused in Nooruddin, supra. In Resham Lal Yadav, the learned Single Judge of Patna High Court held that subsequent charge sheet could not be submitted without further investigation by the police and without further evidence against the accused petitioner. (8). Moot question that arises for determination in the present matter against the back drop of the emerging facts and cited judgments is whether the investigating agency is precluded from filing challan against the accused petitioners under Section 173(8) in respect of whom it kept the investigation pending by recourse to Section 173(8) when it filed challan against the co- accused with a view to undertaking further investigation. In State of Maharashtra vs. Sharad Chandra Vinayat Dongre & Ors. (1995) 1 SCC 42 , the Supreme Court examined a matter where cognizance was taken by the Magistrate after the police had already filed charge sheet and thereafter sought permission of the Court to file supplementary charge sheet. The order taking cognizance was quashed by the Bombay High Court on the premise that when the application was filed by the investigating agency for taking permission to file supplementary charge sheet, the trial Court could not take cognizance of offence on the basis of incomplete charge sheet. The Supreme Court in para 7 and 8 of the judgment held as under: "7. The purpose of the submission of the police report with the details as mentioned above, is to enable the Magistrate to satisfy himself, whether on the basis of the report and the material filed along with the police report, a case for taking cognizance has been made out or not. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1) (b) Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file "supplementary charge-sheet", it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge-sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate. 8. In the instant case, the Chief Judicial Magistrate was obviously satisfied with the sufficiency of the material placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a "supplementary charge-sheet" could not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court while quashing the order dated 21.11.1986, did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or that the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a "supplementary charge-sheet" and from that it inferred that the report filed by the prosecution was `incomplete. High Court even overlooked the fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the investigating officer terms a police report as `incomplete, it takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or the charge-sheet by the investigating officer and it is for him to decide whether the report and the material on which it is based, is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate, did not even say that it was an `incomplete charge-sheet or police report. The High Court was, therefore, not at all justified in opining that since the charge-sheet on the prosecutions own showing was `incomplete the Chief Judicial Magistrate could not have taken cognizance and quashed the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri Dholakia, the learned Senior Counsel appearing for the appellant submitted before us that apart from the material already filed with the police report/charge-sheet, on the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementary charge-sheet before the trial Court. The statement of Shri Dholakia, adequately protects the interest of the respondents. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case." (9). It would thus be evident from the above that the mere permission obtained by the investigating agency from the Court for further investigation was held to be insufficient ground for quashing the cognizance if the Magistrate was otherwise satisfied that their existed sufficient material on record to justify his doing so. However, power of the Magistrate taking cognizance cannot be fettered by the investigation agency whose duty is only to investigate the matter and place the material and evidence before the Magistrate. If the material that was collected by the investigating agency was sought to be made basis for filing challan against the accused under Section 173(8), particularly against whom no challan was filed earlier, the Magistrate was entitled to take his own view of the matter on the basis of quality and sufficiency of evidence against them for taking cognizance. (10). In Union Public Service Commission vs. S. Papaiah & Ors. (1997) 7 SCC 614 , The Supreme Court was dealing with a case where the Magistrate had accepted the final report by the police and closed the case. Various shortcomings in the investigation was brought to the notice of the Magistrate by the information requesting reinvestigation of the matter. The Magistrate declined to do so holding that he had no power to review his earlier order. The Supreme Court held that the Magistrate failed to exercise his jurisdiction vested in him by law as directing further investigation under Section 173(8) of the Cr.P.C. did not mean reviewing the earlier order accepting final report. This judgment though on facts have some distinguishing features, but the ratio thereof would also apply to the present case that merely because the investigation agency at the earlier stage when filed challan against co-accused Hemraj did not file such challan against the accused-petitioners and thereafter when it filed challan, though on the basis of that very material, it cannot be held that the Magistrate would be bound by decision of the investigating agency to withhold challan against accused- petitioners even if there was sufficient evidence available against them. At the same time, however, when the investigating agency wanted to undertake further investigation in the matter so as to strengthen the case of the prosecution, the failure of the Magistrate to take cognizance against the accused-petitioners at that stage cannot be held to be illegal because in the face of such request, the Magistrate did not apply his mind and in fact, could not be expected to apply is mind to whatever material had by then been collected by the investigating agency and was available on record. It should therefore be held that even if the investigating agency on the basis of that material decided to keep the investigation pending against the accused petitioners by recourse to Section 173(8) of Cr.P.C., an inference does not necessarily flow there from that no evidence whatsoever was collected against them and that if the challan was not filed by the investigating agency against the accused at that stage, the Magistrate was precluded from taking cognizance against the accused-petitioners when finally challan is filed by the investigating agency, may be on the same material. As rightly held by their Lordships in Sharad Chandra Vinayak Dongre, power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is to only investigate the matter and place the facts and evidence before the Magistrate. If the Magistrate on the basis of whatever material and evidence is satisfied with the sufficiency of the evidence against the accused for taking cognizance of offences, the issue will have to be approached from the point of view of the sufficiency of evidence and Magistrate cannot be taken to have been divested of his powers to do so just because the investigating agency did not collect any additional or further material in spite of its having resorted to Section 173(8) Cr.P.C. and filed challan on the basis of material it had already collected when it filed challan against one of the accused in the first instance. (11). Matter can be examined from yet another angle. (11). Matter can be examined from yet another angle. It is trite law that when the final report is filed before the Magistrate under Section 173(8) with the conclusion of the investigating officer that no case is made out against the accused, the Magistrate is not bound by that report and he can independently apply his mind on the facts emerging from investigation and take cognizance by exercising of powers u/S. 190(1) (a) or (b) of the Cr.P.C. If the evidence available on record justify his doing so, then he is not bound to follow the procedure u/S. 200 and 202 for taking cognizance u/S. 190(1)(a) Cr.P.C., although it is also open to him as a separate channel to proceed under those provisions. (12). When a Magistrate can differ with the conclusion of the investigating agency in respect of a final report submitted by it with the conclusion that in case was made out on the basis of material that it had collected, the decision of the investigation agency not to file challan against some of the accused while at the same time filing challan against some others, would not bind the Magistrate qua the former as to the sufficiency of the evidence against them. The analogy of law that is applicable in cases where investigating agency has filed final report against the accused and not accepting that conclusion, cognizance is taken by the Magistrate, well equally apply to the cases where the investigating agency decides not to file challan against some of the accused with a view to making further investigation. Moreover the decision of the investigating officer to keep the investigation pending against some of the accused need not necessarily be founded on his satisfaction that no case was made out against such accused. It may rather be intended to collect additional and further evidence against such accused so as to remove the possible shortcomings and lacunaes and to further strengthen the case of the prosecution. No inference of the fact that no case is made out against such accused can possibly therefore be drawn in such circumstances. (13). Apart from the discussions made above, I have also carefully gone through the statements recorded u/S. 161 Cr.P.C. of the witnesses namely; Neeraj, Savitri Devi, Pushpa, Rameshwar Prasad Sharma, Jhaffar Khan, Ayyub, Rambabu Sharma, Bhoor Singh, Kailash, Uganti Devi, Girraj Lal Gupta, Chhittarmal and Smt. Chiroji. (13). Apart from the discussions made above, I have also carefully gone through the statements recorded u/S. 161 Cr.P.C. of the witnesses namely; Neeraj, Savitri Devi, Pushpa, Rameshwar Prasad Sharma, Jhaffar Khan, Ayyub, Rambabu Sharma, Bhoor Singh, Kailash, Uganti Devi, Girraj Lal Gupta, Chhittarmal and Smt. Chiroji. I would however refrain from making elaborate and detailed discussion on the evidence, lest it might prejudice the case of the accused petitioner before the trial Court. All these witnesses have named the accused petitioners herein at one or the other stage on allegations of demand of dowry and cruelty seen before the death, I am therefore not inclined to uphold the arguments advanced on behalf of the accused petitioner that there was no evidence for offence of demand of dowry with reference to Section 498A IPC and cruelty soon before the death with reference to Section 304 IPC. Suffice it to observe that on examination of those statements, I am satisfied that there exist sufficient evidence to justify cognizance against them. The order passed by the learned Sessions Judge taking cognizance against the accused petitioners therefore cannot be faulted on merits because all that the learned trial Court was required to examine at that stage was whether there is some evidence against the accused petitioners to make out a prima facie case against them which was the requirement of law for taking cognizance, I have however deliberately refrained from making detailed and elaborate discussion of all these evidence, as doing so might prejudice the case of the petitioners before the trial Court and that of the co-accused Hemraj in his appeal pending before this Court. (14). Before, however, I come to a close, I need to observe that this revision petition was filed on 21.10.99 against the order taking cognizance dated 8.9.1999 and the record of the case was called for by order of this Court dated 27.9.99 which was received on 30.10.1999. Since then the matter has remained pending before this Court, with the result that the trial Court has not proceeded any further for almost nine years. Since then the matter has remained pending before this Court, with the result that the trial Court has not proceeded any further for almost nine years. While therefore directing the Registry to forthwith return the record of the present case, I deem it appropriate to further direct the trial Court to hold the trial of this matter, as expeditiously as possible, giving priority to this case over trial of any other case, which may not have commenced later than the year 1999, and if possible, on day to day basis, without accepting prayer of either prosecution or the defence for unnecessary adjournment and conclude the trial within nine months from the date of production of certified copy or receipt of record of this case, whichever is earlier. (15). This revision petition is therefore dismissed with the above direction.