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2016 DIGILAW 1220 (RAJ)

Gopal v. State of Rajasthan

2016-08-24

PRASHANT KUMAR AGARWAL

body2016
ORDER : Prashant Kumar Agarwal, J. The accused-petitioners have filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 24.3.2014 passed by the Additional Sessions Judge No.2, Sikar in Sessions Case No.12/2001 whereby the learned Court below allowed the application under Section 319 Cr.P.C. filed by the respondent-complainant and took cognizance against the petitioners for the offences under Sections 498-A and 304-B IPC. 2. Brief relevant facts for the disposal of this petition are that marriage of daughter of respondent took place with the co-accused-Shri Ranveer Singh on 18.3.2001 and FIR No.62/2001 came to be registered on 19.3.2001 for offences under Sections 498-A and 304-B IPC at the instance of respondent and after investigation charge-sheet was filed only against the co-accused for the aforesaid offences. Application under Section 319 Cr.P.C. was filed by the respondent after statements of four material prosecution witnesses were recorded during the course of trial of the co-accused but the same was kept pending by the trial Court and it was not decided immediately. The co accused-Shri Ranveer Singh after trial was convicted by the learned Court below for offence under Section 306 IPC vide judgment and order dated 4.7.2002 and the application under Section 319 Cr.P.C. was dismissed without going into its merits. The respondent-complainant challenged the order dated 4.7.2002 whereby the aforesaid application was dismissed summarily by way of S.B. Criminal Misc. Petition No.266/2003 before this Court which was allowed vide order dated 16.12.2011 and the order dated 4.7.2002 was set aside and quashed and the trial Court was directed to decide the application under Section 319 Cr.P.C. afresh in accordance with law. Thereafter the application was allowed vide impugned order dated 24.3.2014 and the petitioners were ordered to be summoned through bailable warrants. It is to be noted that the judgment and order dated 4.7.2002 whereby co-accused-Shri Ranveer Singh has been convicted and sentenced for offence under Section 306 IPC has been challenged by him by way of a Criminal Appeal whereas respondent-complainant has challenged that order by way of Criminal Revision Petition on the ground that the co-accused has wrongly been acquitted for offences under Sections 498-A and 304-B IPC. 3. 3. Although, the impugned order has been challenged by the petitioners on several grounds but one of the ground submitted by the learned counsel for the petitioners is that once the co-accused who faced trial has been found guilty for offence under Section 306 IPC instead for offences under Sections 498-A and 304-B IPC, it was not open for the learned Court below to take cognizance against the petitioners for offences under Sections 498-A and 304-B IPC as on the basis of same set of evidence two different views cannot be taken by the same Court more particularly in view of the fact that the ingredients essential to constitute the offence under Section 306 IPC are entirely different from ingredients essential to constitute offences under Sections 498-A and 304-B IPC. It was submitted that for an offence to be made out under Section 304-B IPC demand of dowry is one of the most essential ingredient and once the trial Court on the basis of evidence produced during trial qua co-accused has found that it is not a case of "dowry death" but the deceased committed suicide due to instigation on the part of the co-accused, it was the duty of the Court below to consider the judgment and order dated 4.7.2002 and it was not empowasd to take a different view while considering application under Section 319 Cr.P.C. 4. On the other hand, learned Public Prosecutor supported by the learned counsel for the complainant inviting attention of the Court towards Section 319 Cr.P.C. submitted that to invoke the jurisdiction conferred upon it under this provision the Court is empowered to consider the evidence produced before it during trial in the form of oral statements of the prosecution witnesses and the documents and not any other material and, therefore, no illegality or perversity can be said to have been committed if the judgment and order passed qua co-accused was not considered by the Court while passing the impugned order. It was further submitted that finding of the trial Court qua co-accused to the extent of his acquittal from offences under Sections 498-A and 304-B IPC has been challenged by the respondent before High Court and the same is pending consideration and, therefore, the finding of the trial Court cannot be said to have attained finality. 5. It was further submitted that finding of the trial Court qua co-accused to the extent of his acquittal from offences under Sections 498-A and 304-B IPC has been challenged by the respondent before High Court and the same is pending consideration and, therefore, the finding of the trial Court cannot be said to have attained finality. 5. I have considered the submissions made on behalf of the respective parties in the light of the facts of the present case and the relevant legal provisions. 6. Although, generally to invoke jurisdiction under Section 319 Cr.P.C. the Court can consider the evidence brought on record during trial but in the light of the peculiar facts of the present case in which trial against the co-accused was concluded prior to the exercise of power under this provision, I am of the view that judgment and order dated 4.7.2002 passed qua co-accused was also required to be considered. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the Court to interpret the words used by the legislature so as to encompass any situation which the Court may have to tackle while considering a legal provision. It rarely happens that power under Section 319 Cr.P.C. is exercised by a Court after conclusion of trial and decision in respect of the accused who has already faced the trial. The power conferred under this provision cannot be exercised mechanically and the Court is required to consider all the facts and circumstances of the case and whether from the evidence brought on record during trial essential ingredients to constitute the offence for which the cognizance is proposed to be taken are made out or not. In a case it may happen that before an application under Section 319 Cr.P.C. is considered, co-accused is acquitted from all the offences for which he was charged, whether in such a case the Court can take cognizance against the left out accused without considering the judgment of acquittal passed in respect of the co-accused. In my opinion it cannot be. When in such a case, the Court is bound to consider judgment of acquittal before invoking the power under Section 319 Cr.P.C., the same criteria is to be applied in a case in which the co-accused after trial has been convicted for an offence different from the offence for which he was charged. In my opinion it cannot be. When in such a case, the Court is bound to consider judgment of acquittal before invoking the power under Section 319 Cr.P.C., the same criteria is to be applied in a case in which the co-accused after trial has been convicted for an offence different from the offence for which he was charged. In the facts and circumstances of the case, a fresh order is required to be passed by the Court below after considering the judgment and order dated 4.7.2002 passed qua co-accused-Shri Ranveer Singh. 7. Consequently, the revision petition is partly allowed and the impugned order dated 24.3.2014 is set aside and quashed and the trial Court is directed to decide the application under Section 319 Cr.P.C. and pass a fresh order after taking into consideration also the judgment and order dated 4.7.2002 passed qua co-accused-Shri Ranveer Singh. As already stated, although the impugned order was assailed by the petitioners on the basis of several grounds but the other grounds are not required to be considered in view of the order passed by this Court.