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2012 DIGILAW 1108 (RAJ)

Ram Chandar v. State of Rajasthan

2012-05-02

NISHA GUPTA

body2012
JUDGMENT Hon'ble GUPTA, J.—This revision petition has been filed against the order datd 07.10.2010 whereby the application filed under Section 319 Cr.P.C. has been allowed and cognizance has been taken against the present petitioners for the offences under Sections 498A and 306 IPC. 2. The short facts of the case are that the complainant lodged a report at PS Malpura, District Tonk on 11.03.2009 alleging therein that his daughter has beenmarried to Ramphool and she was physically and mentally tortured by her husband and in-laws Ram Chandar, Sajan, Asha and Ramlal. They were demanding Rs.50,000/- in cash and motor cycle as dowry. On 10.03.2009, the complainant went to her in-laws house to bring his daughter home on the festival of Holi but her in-laws misbehaved with him and abused him and further refused to send his daughter until the demand of dowry is fulfilled. On 11.03.209, at about 12.30 p.m., he came to know that his daughter has died. On this report, an FIR No. 34/2009 was registered for the offences under Sections 143, 304B and 34 IPC. After investigation, the police filed charge-sheet against the husband of the deceased only and no case was found to be made against the present petitioners. The learned trial Court framed charges and after recording the prosecution evidence, the complainant filed an application under Section 319 Cr.P.C. praying to take cognizance against the present petitioners, which was allowed. Hence, this petition. 3. The contention of the present petitioners is that powers under Section 319 Cr.P.C. are the extraordinary powers and should be exercised in exceptional cases and the present case does not fall in the category of exceptional case. To invoke the powers conferred by Section 319 Cr.P.C., it is necessary that sufficient material be there, which may ultimately prove he guilt of the accused and in the present case, there is no evidence against the present petitioners to prove their guilt and hence the impugned order should be quashed. 4. Per contra, the learned counsel for the respondent has submitted that there is no infirmity in the impugned order and looking to the statements referred in the impugned order, cognizance has rightly been taken against the present petitioners. 5. The relevant portion for the controversy is Section 319 Cr.P.C. which reads as under: "319. 4. Per contra, the learned counsel for the respondent has submitted that there is no infirmity in the impugned order and looking to the statements referred in the impugned order, cognizance has rightly been taken against the present petitioners. 5. The relevant portion for the controversy is Section 319 Cr.P.C. which reads as under: "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 Curt 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. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 6. Heard learned counsel for the parties and perused the record. 7. The contention of the present petitioners is that power under Section 319 Cr.P.C. are extraordinary power and should be exercised in exceptional cases and reliance has been placed on the decision rendered in the case of Michael Machado & Anr. vs. Central Bureau of Investigation & Anr. ( (2000) 3 SCC 262 ), wherein scope and limitations of Section 319 Cr.P.C. have been dealt with by the Apex Court and has been held as under: "The basic requirement of Section 319 Cr.P.C. is that the court must have reasonable satisfaction from the evidence already collected during trial or in the inquiry regarding two aspects; First, that some other person, who is not arraigned as an accused in that case has committed an offence. Second, that for such offence that other person could as well be tried along with the already arraigned accused. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. But even then, 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 exerci-sed only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A 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 persons." 8. Again the said principles have been reiterated in the case of Kailash vs. State of Rajasthan & Anr. ( AIR 2008 SC 1564 ), wherein it has been held as under: "Provisions of Sec. 319 Cr.P.C. would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are 'it appears from the evidence', 'any person', 'has committed any offence'. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 would be used by such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. The discretion under Section 319 has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person." 9. The discretion under Section 319 has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person." 9. Per contra, the contention of the respondent that if there is any prima facie evidence against the petitioners, they can be called for under the provisions of Section 319 Cr.P.C. To answer this, the learned counsel for the petitioner has relied upon the judgment delivered in the case of Ram Singh & Ors. vs. Ram Niwas & Anr. ( (2009) 14 SCC 25 ), wherein the Hon'ble Apex Court has held as under: "The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Sec. 319 of the Code. We have noticed hereinbefore the importance of the word 'appears'. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the pro-secution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case. The High Court furthermore committed a serious error insofar as it failed to take into consideration that when the order dated 29.5.2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly." 10. Looking at the above legal position, it can safely be inferred that the basic requirement of Section 319 Cr.P.C. is that the Court must have reasonable satisfaction from the evidence collect during the trial persons who are arraigned as an accused, has committed offence and the satisfaction is necessary that evidence adduced on behalf of the prosecution, if remained unrebutted, would lead to conviction of the persons sought to be added as accused in the case. The mere existence of prima facie case would not be sufficient to exercise the jurisdiction under Section 319 Cr.P.C. 11. The mere existence of prima facie case would not be sufficient to exercise the jurisdiction under Section 319 Cr.P.C. 11. In the present case, the learned court below has exercised its jurisdiction only on considering the fact that there is a prima facie case to proceed against the present petitioners for the offences under Sections 498A and 306 IPC. Hence, consideration and reasoning of the impugned order is unsustainable. 12. The next contention of the present petitioners is that after investigation, no charge-sheet has been filed against them. Rather, a negative report has been filed regarding their role in the offence. 13. The contention of the respondent is that the police did not file charge-sheet is no ground for not invoking the provisions of Section 319 Cr.P.C. if, there is a prima facie evidence against the petitioners to proceed under Sec. 319 Cr.P.C. and reliance has been placed on the decision delivered in the case of Suman vs. State of Rajasthan & Anr. ( (2010) 1 SCC 250 ). 14. It is not in dispute that if charge-sheet has not been filed against any of the person, then only the provisions under Section 319 Cr.P.C. can be invoked, if the person has been charge-sheeted, then there is no occasion to invoke the provisions of Section 319 Cr.P.C. Hence, the fact that charge-sheet has not been filed against the present petitioners cannot be the only basis of attack on the impugned order. 15. The contention of the respondent is that at any time, after recording of evidence, provisions of Section 319 Cr.P.C. can be invoked and reliance has been placed on the decision delivered in the case of Ranjit Singh vs. State of Rajasthan ( (1998) 7 SCC 149 ). 16. There is no dispute about this legal position and the petitioners have also not objected the same. 17. The further contention of the present petitions is that prosecution evidence has already been closed and statement of accused have been recorded under Section 313 Cr.P.C. On this belated stage, application under Section 319 Cr.P.C. has been filed which is mala fide and deserves to be dismissed. 18. The contention of the respondent is that there is no limitation provided under Section 319 Cr.P.C. within which such application can be made and reliance has been placed on the judgment delivered in the case of Bholu Ram vs. State of Punjab & Anr. 18. The contention of the respondent is that there is no limitation provided under Section 319 Cr.P.C. within which such application can be made and reliance has been placed on the judgment delivered in the case of Bholu Ram vs. State of Punjab & Anr. ( (2008) 9 SCC 140 ). 19. It is not in dispute that according to the provisions of Section 319 Cr.P.C., in the course of trial, application under Section 319 Cr.P.C. can be made but the contention of the present petitioners is that application should be filed at the earliest stage in the proceedings and reliance has been placed on the judgment delivered in the case of Dindayal Sharma vs. State of Rajasthan (RLW 1996(1) Raj. 445), wherein it has been held as under: "There is no doubt that Section 319 Cr.P.C. empowers a Magistrate to take cognizance of an offence against such person who is not an accused in the case and who appears or does not appear in the course of the proceedings but who is found to be involved in the commission of a crime fro which other persons are being tried before him. But the Magistrate is expected to consider as to when and under what circumstances he was going to exercise the powers vested in him by law. It is the only judicial exercise of such powers to which law affords its recognition and not any arbitrary exercise of such powers which may result in harassing an innocent person. It is for that reason that the powers under Section 310 are required to be very sparingly exercised in most deserving cases. It is not to be exercised for harassing the other persons who might be having some connection or relations with the persons on trial. It is in that spirit that the mandate contained in Section 456(2) Cr.P.C. is required to be kept in mind. Considering the said provision of Section 465, the mandates envisages that objections against the acts of omission and commissions, error or irregularities in any proceedings under the court should be taken at the earlier stage of the proceedings. The said provision clearly casts a duty upon the concerned person to see that such objections have been raised at the earliest stage of the proceedings." 20. The said provision clearly casts a duty upon the concerned person to see that such objections have been raised at the earliest stage of the proceedings." 20. Looking at the above position, it is true that no limitation has been provided under Section 319 Cr.P.C. but still it is the duty of the complainant and the prosecution to raise the objection at the earlier stage. But, in the present case, the application has been filed after closing of the prosecution evidence and consequence of the impugned order, would necessarily be that of the witnesses examined earlier in this case has to be examined again and it seems that the present application was moved without any reasonable basis. 21. In the light of the above legal principles, if evidence of the present case is seen, it goes to show that the learned trial Court has relied upon the evidence of PW-1 Ramdev, who has stated nothing regarding any act of the present petitioners. He has only stated that Ram Chandar has stated that father of the deceased is used to teach her and an omnibus allegation has been made against other accused, who are mother-in-law, sister-in-law and brother-in-law of the deceased. PW-3 Pappulal, PW-10 Ladu, PW-12 Chhoti, PW-13 Gaduli and PW-14 Laxmi Devi, have also made omnibus allegations regarding the present petitioners and nothing has been stated in their earlier statements recorded during the investigation and they have improved their statements in he court. PW-9 Ramswaroop has only stated that in-laws have killed the deceased but no specific incident has been narrated by these witnesses. PW-21 Ramdev and PW-23 Ratti Ram have stated regarding quarrel with the in-laws but no specific allegations have been made regarding abetment of commission of suicide. PW-10 Ladu has stated that the in-laws were not used to well treat the deceased and complaint has been made to Ram Chandar. He has done counseling many a times and advised his son but he was not going with his advice. 22. Hence, the totality of the evidence, produced in support of the prosecution case, does not reasonably indicate that there are any possibility of conviction regarding the present petitioners. He has done counseling many a times and advised his son but he was not going with his advice. 22. Hence, the totality of the evidence, produced in support of the prosecution case, does not reasonably indicate that there are any possibility of conviction regarding the present petitioners. The evidence only suggests that there is some doubt about their involvement in the offence but only doubt is not sufficient to invoke the provisions of Section 319 Cr.P.C. and the counsel for the petitioners has placed reliance on the judgment delivered in the case of Sarabjit Singh & Anr. vs. State of Punjab & Anr. ( AIR 2009 SC 2792 ), where it has been held as under: "Before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the Court must also be such which would satisfy the Court that it is one of those cases where its jurisdiction should be exercised sparingly. An order under Section 319, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. for the aforementioned purpose, the Courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned." 23. In the light of the above, in the FIR, omnibus allegations have been made against the present petitioners and some of the witnesses have improved their statements and tried to implicate the present petitioners but there is no sufficient evidence to implicate the present petitioners. There is no convincing evidence to invoke the extraordinary jurisdiction of the court and the learned Court below has not appreciated the evidence is right perspective. Only a prima facie case has not been found against the present petitioners and cognizance has been taken under Section 319 Cr.P.C., which is against the settled proposition of law laid down in the case of Michael Machado (supra). 24. Only a prima facie case has not been found against the present petitioners and cognizance has been taken under Section 319 Cr.P.C., which is against the settled proposition of law laid down in the case of Michael Machado (supra). 24. The contention of the present petitions is that there is no iota of evidence regarding commission of offence under Section 306 IPC. 25. The contention of the respondent is that too book a person under Section 306 IPC, it is only needed that the person commits suicide and someone has abetted him for such act. 26. It is true that to book a person under Section 306 IPC, there are the only requirements but here, in the present case, it is admitted position that the deceased committed suicide but there is no evidence against the present petitioners that they have abetted the deceased for commission of suicide and it has also been stated that other accused have not been charged for the offence under Section 306 IPC. 27. Hence, looking at the totality of the circumstances and evidence led before the Court, the trial Court has not exercised the jurisdiction under Section 319 Cr.P.C. rightly. 28. Consequently, this revision petition is allowed and the impugned order dated 07.10.2010 is quashed and set aside and the application filed under Section 319 Cr.P.C. is dismissed and the petitioners are discharged of the offences under Sections 498A and 306 IPC.