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2024 DIGILAW 1628 (ALL)

Vinesh Kumar Yadav v. State of Uttar Pradesh

2024-07-08

SAURABH SHYAM SHAMSHERY

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JUDGMENT : Hon'ble Saurabh Shyam Shamshery, J. 1. Heard Sri Shishir Tandon, learned counsel for applicant, Mrs. Mamta Singh, Advocate on behalf of O.P. No.2 and Sri B.P.Singh, learned A.G.A. 2. Applicant before this Court has approached for quashing the impugned order dated 29.11.2019 passed by Special Chief Judicial Magistrate, Kanpur Nagar in Case No. 1049 of 2019, (State of Uttar Pradesh Vs. Narendra Yadav and others) arising out of Case Crime No.885 of 2018 under Section 406 of I.P.C. and Section ¾ of Dowry Prohibition Act, Police Station-Barra, District-Kanpur Nagar. 3. Applicant before this Court is father of the victim, whose marriage was fixed with O.P. No.2 i.e. complainant. 4. Complainant lodged an F.I.R. under Sections 376, 406 I.P.C. and 3/4 of Dowry Prohibition Act 1961 against present applicant and 12 co-accused being his close family members including women. Contents of F.I.R. is reproduced hereinafter : 5. Investigation was conducted in aforesaid F.I.R. wherein statement of victim was recorded under Section 161 and 164 Cr.P.C. For reference same are reproduced hereinafter: 6. After investigation, a charge-sheet was filed only under Section 406 I.P.C. and 3/4 of Dowry Prohibition Act against Narenda Singh and ShivRam Das i.e. brother of O.P. 2 and his father. No charge-sheet was filed against any other accused persons named in the F.I.R., including opposite party no.2 herein i.e. complainant’s husband as well as no offence was found under Section 376 of I.P.C. 7. At the stage of cognizance, victim filed an application dated 2.1.2019 with a prayer that during investigation, statement of victim recorded under Section 164 Cr.P.C. was not considered, therefore, it may be sent to the Investigation Officer for further investigation. 8. Learned Trial Court considered the above referred application and rejected the same and thereafter took cognizance of the offence and summoned two accused persons against whom charge-sheet was filed. Relevant part of said order is mentioned hereinafter: 9. It appears that a report was filed by Investigation Officer after further investigation, whereby the charge-sheet submitted earlier was again approved. 10. Learned counsel for applicant has submitted that aforesaid order is impugned in present case. It was urged on behalf of complainant that O.P. No.2 be summoned under Section 376 I.P.C. as on basis of material available, said offence was made out. 11. 10. Learned counsel for applicant has submitted that aforesaid order is impugned in present case. It was urged on behalf of complainant that O.P. No.2 be summoned under Section 376 I.P.C. as on basis of material available, said offence was made out. 11. Aforesaid argument was considered by learned Trial Court and by impugned order dated 29.11.2019, it was rejected and relevant part thereof is mentioned hereinafter: 12. Learned counsel for applicant has not been able to deny that that at the stage of cognizance in view of judgment passed by Supreme Court in State of Gujarat Vs. Girish Radhakrishnan Varde (2014) 3 SCC 659 , learned Trial Court has no option, to add or subtract any offence other than offence under which a charge-sheet has been filed, therefore, at this stage, offence under Section 376 I.P.C. could not be added. 13. Learned counsel for applicant has referred judgments passed by Supreme Court in case of Dharampal & Ors Vs. State of Haryana & Anr (2014) 3 SCC 306 and Kishun Singh & Ors. Vs. State of Bihar (1993) 2 SCC 16 to emphasize that Court of Sessions has complete and unfettered jurisdiction to take cognizance of offence which would include summoning of a person or persons whose complicity in commission of crime was prima-facie evident gathered from material available on record, even though no charge sheet was filed against them and for that learned Trial Court does not need to wait till the stage of Section 319 Cr.P.C. is reached in trial. For reference relevant paragraphs of aforesaid judgments Dharampal and Kishun Singh (Supra) are reproduced hereinafter : “40. Dharampal (supra) In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh case [Kishun Singh v. State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein. 16. Kishun Singh (supra) . Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein. 16. Kishun Singh (supra) . We have already indicated earlier from the ratio of this Court's decisions in the cases of Raghubans Dubey [ (1967) 2 SCR 423 : AIR 1967 SC 1167 : 1967 Cri LJ 1081] and Hareram [ (1978) 4 SCC 58 : 1978 SCC (Cri) 496 : (1979) 1 SCR 349 : AIR 1978 SC 1568 ] that once the court takes cognizance of the offence (not the offender)it becomes the court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put upfor trial by the police some others are also involved in the commission of the crime, it is the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in Section 193 of the Code from that under the old Code in the case of Sk. The Full Bench of the High Court of Patna rightly appreciated the shift in Section 193 of the Code from that under the old Code in the case of Sk. Lutfur Rahman [ 1985 PLJR 640 : 1985 Cri LJ 1238 (Pat HC) (FB)] as under: “Therefore, what the law under Section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are prima facie guilty of the crime as well …. Once the case has been committed, the bar of Section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon any individual accused of the crime.” We are in respectful agreement with the distinction brought out between the old Section 193 and the provision as it now stands.” 14. Learned counsel for applicant has referred two arguments. Firstly on basis of material available and statement of victim recorded under Section 164 Cr.P.C., offence of rape is made out against O.P.No.2. However, as referred above, in Varde (supra), it has been held that no addition or subtraction in offences under which charge-sheet was filed could be done at the stage of cognizance or summoning the accused and relevant part of said judgment is mentioned hereinafter: “The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet.” (Emphasis Supplied) 15. Accordingly, first argument is rejected. Second limb of argument of learned counsel for applicant is that on basis of material available, O.P. No.2 may be summoned to face trial at least for the offence under which charge-sheet has been filed i.e. for Section 406 I.P.C. and 3/4 of Dowry Prohibition Act and for that counsel for applicant has referred judgments passed in Dharampal and Kishun Singh (supra). 16. Per contra, learned counsel for O.P.No.2 and learned A.G.A. have opposed the above submissions and they submittted that on basis of material available, no case is made out against O.P. No.2 to summon him for offence under which charge-sheet was filed. 17. 16. Per contra, learned counsel for O.P.No.2 and learned A.G.A. have opposed the above submissions and they submittted that on basis of material available, no case is made out against O.P. No.2 to summon him for offence under which charge-sheet was filed. 17. I have carefully perused the above referred part of judgments of Dharampal and Kishun Singh (supra) (supra) and law in regard to summoning is clear that since cognizance is taken of an offence, therefore, in case there is a complicity of accused against whom charge-sheet has not been filed still, they could be summoned. 18. In order to appreciate as to whether there are sufficient evidence to summon O.P. No.2 for the offence under Section 406 I.P.C. and 3/4 of D.P. Act, I have carefully perused statements of complainant and victim also. However, there is no specific allegation against O.P. No.2 that he has demanded dowry or he was a party in the allegations that the amount paid towards marriage was not returned, therefore, on basis of material available, Court is of the view that even no offence is made out against O.P. No.2 to summon him for offence under Section 406 I.P.C. and 3/4 of D.P. Act at the stage of cognizance and summoning. However, this order will not come in the way, if Trial Court at the stage of Section 319 Cr.P.C., on basis of evidence available during trial found material to summon O.P. No.2 before trial under Section 406 of I.P.C. and 3/4 of D.P. Act. It is also observed that if there is an evidence during trial, against applicant or co-accused for the offence under which charge-sheet has not been filed in such event, complainant as well as Court is at liberty to proceed under Section 217 Cr.P.C. at appropriate stage. 19. Prayers made in this application are accordingly rejected. 20. With the aforesaid observation/direction, this application is disposed of.