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2008 DIGILAW 735 (JHR)

Putul Gupta v. State of Jharkhand

2008-07-16

D.G.R.PATNAIK

body2008
ORDER D.G.R. Patnaik, J. 1. The petitioner has challenged the order dated 23.3.2007, passed by the First Additional Sessions Judge, Hazaribagh in Sessions Trial No. 498 of 2004, whereby the petitioner's prayer under Section 319 of the Cr. P.C. for summoning the respondent Nos. 2 to 6 and directing them to face trial in the case was rejected. 2. The facts of the case in brief are that the petitioner had filed a complaint in the Court of the learned Chief Judicial Magistrate against her husband. Sanjay Gupta and also against the opposite party Nos. 2 to 6. The complaint was forwarded to the police for registering a case and investigation. The case at the Sadar Police Station was registered for the offences under Sections 398-A and 307 of the IPC and under Section 3/4 of the Dowry Prohibition Act. After concluding the investigation, the police submitted charge-sheet recommending trial of the husband. Sanjay Gupta only while the remaining accused persons, namely, the present opposite party Nos. 2 to 6 were not sent up for trial. After accepting the recommendations in the charge-sheet, the learned Court of the Chief Judicial Magistrate took cognizance of the offence and issued summons to the husband. Being aggrieved with the order of cognizance, the petitioner/complainant filed a Revision application before the High Court, agitating therein, that the learned Chief Judicial Magistrate has erred in failing to take cognizance of the offences against the other accused persons, namely, the present opposite party Nos. 2 to 6. The Revision application was, however, dismissed by the High Court vide order dated 8.12.2005, passed in Cr. Revision No. 1103 of 2004. The trial against the sole accused husband of the petitioner commenced. At the trial, four witnesses including the complainant herself were examined. On the basis of the evidence adduced at the trial through the witnesses, the petitioner field her application before the Court below under Section 319 of the Cr. P.C., praying that the opposite party Nos. 2 to 6 should be summoned to face trial. The learned trial Court, however, rejected the prayer vide its impugned order. It is against this order that the present Revision application has been filed by the petitioner. 3. Mr. P.C., praying that the opposite party Nos. 2 to 6 should be summoned to face trial. The learned trial Court, however, rejected the prayer vide its impugned order. It is against this order that the present Revision application has been filed by the petitioner. 3. Mr. Mahesh Tiwari, learned Counsel for the petitioner while assailing the impugned order of the learned Court below, invites attention to the evidences of the PWs 1, 2, 3 and 4 and submits that the evidences categorically declare that the complainant was subjected to ill-treatment and torture not only by her husband but also by the opposite party Nos. 2 to 6, who happen to be her parents-in-law and brothers-in-law respectively and, therefore, in view of the specific evidences against them, it was incumbent upon the trial Court to summon the opposite party Nos. 2 to 6 also directing them to face trial. Learned Counsel explains further that after the case was registered at the police station against the opposite party Nos. 2 to 6, they had filed an application before this Court for grant of anticipatory bail but the same was rejected with a direction that they should surrender before the Court below and seek regular ball and thereafter, the opposite party Nos. 2 to 6 approached the Investigating officer, applying pressure on him and under their influence, the Investigating Officer had tried to presurize the informant and her father to compromise with the accused persons and when they refused, the Investigating Officer submitted charge-sheet only against the husband of the petitioner while exonerating the remaining accused persons. The petitioner thereafter filed a complaint before the DIG of Police. Hazaribagh forwarding a copy thereof to the High Court and under the administrative orders of the Acting Chief Justice, the Superintendent of Police was asked to enquire and to take necessary action on the allegation made by the petitioner. However, in the meantime, the charge-sheet was submitted only against the petitioner's husband and final form was accepted by the learned CJM. Hazaribagh. 4. Counter affidavit has been filed on behalf of the opposite party Nos. 2 to 6, wherein, they have denied and disputed the entire claim of the petitioner. Mr. Nilesh Kumar, learned Counsel appearing for the opposite party Nos. Hazaribagh. 4. Counter affidavit has been filed on behalf of the opposite party Nos. 2 to 6, wherein, they have denied and disputed the entire claim of the petitioner. Mr. Nilesh Kumar, learned Counsel appearing for the opposite party Nos. 2 to 6 submits that the instant Revision application is totally misconceived and there is no illegality or impropriety in the impugned order of the learned trial Court. Learned Counsel would explain that the opposite party No. 2 is the father-in-law of the petitioner who had retired from service 16 years ago in the year 1992 and he is presently aged about 74 years while the opposite party No. 3, Nirmala Rani Gupta is the mother-in-law, aged 65 years. Out of the three remaining opposite parties, the opposite party No. 4 Rakesh Kumar Gupta is employed and presently living at Jamshedpur, the opposite party No. 5. Ravi Kant Gupta is also employed and living at Jamshedpur and the opposite party No. 6, Shashi Kant Gupta, is also employed and living at Budwil, Chhatisgarh, working as a Mining Engineer. While the opposite party Nos. 2 and 3 are living separately at their native village, the remaining opposite party Nos. 4 to 6 also live separately in their respective quarters, allotted to them by their employers and even at the time of marriage of the petitioner with her husband, they used to live separately. Learned Counsel explains further that even as admitted in the complaint petition, soon after her marriage solemnized on 20.5.2001, the petitioner along with her husband went to Kolkata where the husband was employed and later, on his transfer to Pune, they shifted to Pune and liyed there far away and separate from the present opposite parties. The allegations in the complaint petition relate to certain incidents which had occurred between the husband and wife while they were living together either at Kolkata or at Pune and the last date of the alleged occurrence as stated in the complaint petition is 30th June. 2003 on which date, the complainant was living at Pune in the exclusive company of her husband. Learned Counsel explains that the allegations against the present respondents are totally omnibus and general in nature. It was under these circumstances that the police on investigation did not find any material against the present respondents for recommending therein trial and, therefore, submitted the charge-sheet only against the husband. Learned Counsel explains that the allegations against the present respondents are totally omnibus and general in nature. It was under these circumstances that the police on investigation did not find any material against the present respondents for recommending therein trial and, therefore, submitted the charge-sheet only against the husband. Learned Counsel argues further that from the facts stated it appears that the learned Chief Judicial Magistrate accepted the police reports and issued summons after taking cognizance of the offence only against the husband. The petitioner being aggrieved, filed a Revision application before the High Court, which was dismissed. From the evidences also, it appears that though the petitioner and her witnesses have named the present respondents but no specific evidence has been adduced against them nor has any specific conduct been alleged against them. The facts and circumstances amply demonstrate, therefore, that the petitioner is bent upon harassing the entire members of her matrimonial family including the aged parents-in-law and brothers of her husband only in order to compel them to accept her in their family although the husband is totally unwilling to reconcile and restore conjugal relations with her. From the perusal of the impugned order of the learned Court below, it appears that on considering the evidence adduced at the trial, the trial Court had recorded its observation that the evidence of the prosecution witnesses are not sufficient to summon the other five co-accused persons against whom cognizance has not been taken and that there is no prima facie case made out against the other five persons. It is on these grounds that the learned Court below has rejected the petitioner's prayer. 5. The allegations in the complaint petition filed by the petitioner is that the complainant's marriage was solemnized with her husband on 20th May, 2001 and in which the husband's parents and brothers, namely, the present respondent Nos. 2 to 6 had participated. However, at the time of marriage, the parents and the brothers of the husband had demanded a heavy dowry both in cash and kind and they had refused to solemnize the marriage, unless the money was paid. Accordingly, seven separate demand drafts, each for the value of Rs. 20.000/- and one for the amount of Rs. However, at the time of marriage, the parents and the brothers of the husband had demanded a heavy dowry both in cash and kind and they had refused to solemnize the marriage, unless the money was paid. Accordingly, seven separate demand drafts, each for the value of Rs. 20.000/- and one for the amount of Rs. 10,000/-, was drawn up by the complainant's father in the name of the complainant's mother-in-law, Nirmala Rani Gupta and also in the names of complainant's brother-in-law, Rakesh Kumar Gupta, Ravi Kant Gupta and opposite party No. 6, Shashi Kant Gupta. These bank drafts were drawn in the State Bank of India, Hazaribagh Branch and a total amount of Rs. 2,00,000/- by way of Bank drafts was given to the husband and his father. After her marriage, the complainant lived with her husband at Jamshedpur for some days and thereafter, her husband took her to Kolkata, where he was employed. She used to visit her in-laws house at Jamshedpur at regular intervals. She has alleged that the members of her matrimonial house collectively demanded a Marui car and a further sum of Rs. 2,00,000/- and due to non-fulfillment of their demand of dowry, they had indulged in acts of physical cruelty and torture against her. Further allegations in the complaint are that according to rituals, the petitioner after her marriage went back to her parents house and the 'gouna' ceremony was solemnized on 21st July, 2001, and one day prior to the ceremony, the husband along with his younger brother Rakesh Kumar Gupta and his brother-in-law Kishore Gupta came to the house of the complainant's father at Hazaribagh. The husband allegedly forced the complainant to sign a few blank sheets of papers on threats of injury to her life and person. Further allegation is that the husband had entered into extra-marital relations with a lady, namely. Sweta and it was on account of such relations, the other lady used to make frequent visits to her husband's house at Kolkata and later at Pune also. On her protest against the extra- marital relationship, the husband in conspiracy with the other lady, subjected her to physical torture at Pune. Ultimately, she was brought by her husband and left at her father's house and she had been virtually deserted by her husband. On her protest against the extra- marital relationship, the husband in conspiracy with the other lady, subjected her to physical torture at Pune. Ultimately, she was brought by her husband and left at her father's house and she had been virtually deserted by her husband. A specific allegation again has been levelled against the husband that on 20th June, 2003 and again on 22nd June, 2003, the husband, on the instruction of the other lady, had brutally assaulted the complainant and had even forced her to swallow some poisonous substance. This incident had allegedly occurred at Pune. 6. In the evidence of the witnesses including that of the petitioner, the same statements more or less as contained in the complaint petition, were repeated. The names of the present opposite party Nos. 2 to 6 though appear in the evidence of the witnesses but no specific overt act has been attributed to them nor has any date being specified in respect of the allegations of cruelty leveled against them. On the contrary, it appears that the allegation against the respondent Nos. 2 to 6 are general and omnibus in nature. It is also admitted in the evidence that after her marriage, the petitioner used to live with her husband at Kolkata and later, on transfer of her husband from Kolkata to Pune, they had shifted to Pune. Thus, virtually, the complainant did not live for any substantial period in the company of the opposite party Nos. 2 to 6. The mere allegation that at the time of marriage, a sum of Rs. 3,00,000/-was given to the husband and his father by way of demand drafts drawn in the name of the husband's mother and his brothers does not ipso/facto lead to the inference that the petitioner was subjected to ill- treatment and torture over demand for dowry nor does it lead to the inference, that the money though received by the husband and his father, was given in response to any demand made by them. Furthermore, it appears that the opposite party Nos. 2 to 6, who happen to be the family members of the husband of the complainant, were found to be innocent during investigation made by the police. The opposite party Nos. 2 to 6 were residing separate from the husband of the complainant. Furthermore, it appears that the opposite party Nos. 2 to 6, who happen to be the family members of the husband of the complainant, were found to be innocent during investigation made by the police. The opposite party Nos. 2 to 6 were residing separate from the husband of the complainant. On considering these circumstances, it appears that the trial Court has rightly rejected the petitioner's prayer for summoning the respondents Nos. 2 to 6 to face trial. 7. The scope of the provisions of Section 319 of the Cr. P.C. has been elaborately explained by the Supreme Court in several Judgments Including the Judgment in the case of Machael Machado and Anr. v. CBI and Anr. reported in 2000 Cri. L.J. 1706 and later in the case of Krishnappa v. State of Karnataka reported in 2004 Cri. L.J. 4185, The Supreme Court in the case of Michael Machadu (supra) has observed as follows: The Court must have reasonable satisfaction from the evidence already collected regarding two aspects while invoking power under Section 319 to proceed against other persons appearing to be guilty of offence. 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 the, 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 another person also with the offence. 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 person. 8. It is, therefore a settled principle that while exercising its discretion under Section 319 of the Cr. 8. It is, therefore a settled principle that while exercising its discretion under Section 319 of the Cr. P.C., the Court must have reasonable satisfaction from the evidences recorded regarding two aspects, the first aspect is that the other person has committed an offence and the second aspect is that for such offence the other person could as well be tried along with the already arraigned accused. Even then, the discretionary power should be exercised only to achieve criminal Justice and should not be easily resorted to. 9. As mentioned above, during investigation all the present opposite party Nos. 2 to 6 were found innocent and even in their respective depositions at the trial, neither the complainant nor her witnesses could establish any specific evidence against the opposite party Nos. 2 to 6. 10. In the light of the above discussion's, I do not find any illegality or infirmity in the impugned order of the trial Court. Accordingly, this application is dismissed at the stage of admission itself. Application dismissed.