Rajasthan High Court - Jaipur
Renu vs State Of Rajasthan on 2 May, 2019
Author: Goverdhan Bardhar
Bench: Goverdhan Bardhar
(1 of 9) [CRLR-1080/2018]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 1080/2018
Renu Spouse/o Bhupendra Singh D/o Shri Bhagwati Singh, Aged
About 41 Years, R/o 5/33, Vidhyadhar Nagar Jaipur (Rajasthan)
----Petitioner
Versus
1. State Of Rajasthan, Jaipur
2. Virendra Singh S/o Raghuraj Singh, Aged About 53 Years,
R/o 53, Devi Path Kanota Beg, Takhte Shahi Road Jaipur
3. Smt. Priyanka Spouse/o Virendra Singh, R/o 53, Devi
Path Kanota Beg, Takhte Shahi Road Jaipur
----Respondents
For Petitioner(s) : Mr. Pankaj Gupta
For Respondent(s) : Mr. Atul Sharma - PP
Mr. Anoop Agarwal - for respondent
Nos.2 & 3 HON'BLE MR. JUSTICE GOVERDHAN BARDHAR DATE OF JUDGMENT : 15th May, 2019 Instant criminal revision petition has been filed assailing the order dated 24th May, 2018, whereby learned Additional Sessions Judge, Women Atrocities Cases No.1, Jaipur Metropolitan, Jaipur dismissed the application filed under Section 319 Cr.P.C.
Brief facts of the case are that marriage between complainant (Smt. Renu) and co-accused Shri Bhupendra Singh was solemnized on 22nd June, 2004 at Jaipur. It is alleged that the accused persons including respondent Nos.2 and 3 started cruelty with the petitioner. They also demanded dowry from the petitioner. On 11th December, 2004, petitioner was subjected to forceful abortion and also subjected to mental and physical cruelty. She was finally thrown out of matrimonial home in August, 2005. (Downloaded on 28/06/2019 at 11:12:13 PM)
(2 of 9) [CRLR-1080/2018] In view of the above criminal act of the accused persons including respondent Nos.2 and 3, the petitioner submitted an FIR No.33/2006 at Police Station Mahila Thana (East), Jaipur on 26 th May, 2006 for the offences under Sections 498A, 406 and 313 IPC. The Police after making thorough investigation found case against all accused persons including respondent Nos.2 and 3 but subsequently investigation was changed and last Investigating Officer submitted charge sheet/F.R. No.40/2007 and without any findings surprisingly did not file charge sheet against respondent Nos.2 and 3, whereas, there is substantial evidence against respondent Nos.2 and 3.
After submission of the charge sheet, the petitioner submitted an application under Section 190 Cr.P.C. but the same was dismissed. Thereafter, statements of the material witnesses i.e. PW1-Renu Khidiya (petitioner), PW2-Bhagwati Singh and PW3- Vimla Devi were recorded. In view of court statements of the material witnesses, the petitioner submitted an application under Section 319 Cr.P.C. before the learned trial court but the same was dismissed vide order dated 24 th May, 2018. Against the said order, present criminal revision petition has been filed by the petitioner.
Learned counsel for petitioner submits that learned trial court failed to appreciate the fact that there is specific allegation leveled against respondent No.2 & 3 in the FIR as well as in the statements recorded before the trial Court. The allegation of petitioner fully supported by the medical evidence.
Learned counsel for petitioner further submits that there is substantial allegation levelled against the accused respondent No.2 & 3 in FIR as well as in the court statements. The 3-4 Investigation Officers found case against the respondent No.2 and
3. They proposed charge sheet but respondent No.2 & 3 (Downloaded on 28/06/2019 at 11:12:13 PM) (3 of 9) [CRLR-1080/2018] subsequently by using their influence changed the investigation and last Investigating Officer took U-turn and without any finding submitted charge-sheet only against other co-accused persons and respondent No.2 & 3 were quit from the charge-sheet. After committal of the case, material witnesses including petitioner have been examined before the trial court and all the witnesses categoricaly made allegations against respondent No.2 & 3 but the learned trial court on surmises and conjectures dismissed the application under Section 319 of Cr.P.C.
Learned counsel for petitioner further argued that learned trial court on Page No.9 of the impugned order mentioned about the order dated 17.2.2009, whereas, at the stage of 319 Cr.P.C., there is no relevancy of order under Section 190 of Cr.P.C.
Learned counsel for petitioner further contended that it is an admitted legal position that while considering an application under Section 319 of Cr.P.C., the only document, which is liable to be considered, is the testimony of the prosection witnesses but, that too, without tested by cross-examination. The defence set up by the previous accused and cross-examination by them is totally irrelevant for proposed accused under Section 319 of Cr.P.C. The learned trial court on Page No.10 of the impugned order exceeded their jurisdiction and not only cross-examination was considered but also defence documents were taken into consideration.
Learned counsel for petitioner further contended that learned trial court has failed to appreciate the fact that for an application under Section 319 of Cr.P.C., the only document, which can be considered, is the statements of prosecution witnesses not tested by cross-examination and the statement under Section 161 of Cr.P.C. is totally irrelevant for consideration of the application under Section 319 of Cr.P.C. The learned trial court on page 10 of (Downloaded on 28/06/2019 at 11:12:13 PM) (4 of 9) [CRLR-1080/2018] impugned order not only considered the statement recorded under Section 161 of Cr.P.C. but also considered the statement recorded as "Further Statement". The above evidence is totally irrelevant for consideration of an application under Section 319 of Cr.P.C. In this regard, learned counsel for petitioner has placed reliance upon the judgments of the Hon'ble Apex Court in the following cases:
(1) Suman Vs. State of Rajasthan & Anr. (AIR 2010 SC 518) (2) Rajindra Singh Vs. State of UP & Anr. (AIR 2007 SC 2786) (3) Rakesh Vs. State of Haryana (AIR 2001 SC 2521) Learned counsel for petitioner further argued that learned trial Court interestingly considered the documents submitted by the proposed accused and illegally and contrary to the factual position observed that the accused respondent Sh. Virendra Singh was promoted on 25.12.2004 and transferred on 12.7.2005 to Ajmer. If the observation of the learned trial court may be accepted then also dated of incident i.e. abortion was 11.12.2004 and admittedly accused respondent was transferred only thereafter.
Learned Public Prosecutor as well as counsel for respondent Nos.2 and 3 opposed the criminal revision petition and supported the impugned order passed by learned trial court.
Learned counsel appearing for respondent Nos.2 and 3 argued that names of the respondent Nos.2 and 3 have been mentioned but charge sheet was not filed against them. Thereafter, an application was submitted by the petitioner under Section 190 Cr.P.C. for taking cognizance against respondent Nos.2 and 2 but the same was dismissed by the court below vide order dated 17th February, 2009.
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(5 of 9) [CRLR-1080/2018] Learned counsel for respondents further argued that after dismissal of the application under Section 190 Cr.P.C., the petitioner filed an application under Section 319 Cr.P.C. for adding respondent Nos.2 and 3 as accused in the charge sheet. It is submitted that application under Section 319 Cr.P.C. was filed after inordinate delay of more than nine years from the date of dismissal of the appilcation under Section 190 Cr.P.C.
Learned counsel for respondents has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Labhuji Amratji Thakor & Anr. Vs. The State of Gujarat & Anr., reported in 2019 (1) WLC (SC) Cri. 85. He submitted that power under Section 319 Cr.P.C. is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which should be used sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. Therefore, Section 319 Cr.P.C. contemplates existence of evidence appearing in the course of trial where the court concludes that person not arraigned before it is involved in commission of crime, for which, he can be tried with those already named by the police.
On perusal of impugned order dated 24th May, 2018, it reveals that the application under Section 319 was filed by the Special Public Prosecutor on the ground that PW1 to PW3 in their statements clearly spelt out the role played by Virendra Singh (brother-in-law) and Smt. Priyanka (sister-in-law) in the matter of demand of dowry. They have also made allegation for giving physical and mental harassment to the complainant. The witnesses had made a specific mention about the incidence of abortion against will of the complainant.
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(6 of 9) [CRLR-1080/2018] I have heard submissions of learned counsel for the parties and perused the impugned order.
On perusal of statement of PW1-complainant (Renu), it reveals that she has not clearly spelt out the role played by Virendra Singh (brother-in-law) and Smt. Priyanka (sister-in-law). The relevant portion of the statement of PW1 is ad infra:
^^;g lgh gS fd fojsUnz flag esjk tsB esjh 'kknh ls igys t;iqj fo|qr forj.k fuxe esa dk;Z djrs FksA 'kknh ds le; mudh iksfLVax t;iqj FkhA t;iqj esa dgka iksfLVax Fkh esjh muls ckr ugha gqbZ uk gh eSaus dHkh muls iwNkA esjh 'kknh ds le; tsB dk ,d csVk Fkk tks ml le; pkj lky dk FkkA fojsUnz dh iRuh dk uke fiz;adk gS] budh 'kknh esjh 'kknh ls 5 lky igys gqbZ FkhA eSa fiz;adk ds ekrk firk ls ugha feyhA fiz;adk tks/kiqj dh jgus okyh gS tks/kiqj esa cks:Unk xkao gSA esjh fiz;adk ds ekrk firk ls fdlh QaD'ku esa eqykdkr ugha gqbZ uk gh eSa dHkh] muls feyus cks:Unk xbZA fiz;adk tks esjh tsBkuh yxrh gS mlds }kjk eq>s bl vk'k; dh dksbZ f'kdk;r ugha dh fd Jherh euksgj daoj ¼lkl½] Jherh vfurk ¼uun½ vkSj Jh j?kqjkt flag ¼llqj½ mls ngst ds fy;s ;k vU; fdlh izdkj ls ijs'kku djrs gks vt [kqn dgk eq>s ijs'kku djus esa esjh tsBkuh fiz;adk dk vge jksy FkkA og lcdks HkMdkrh FkhA ;g ckr lgh gS fd eSaus viuh izn'kZ ih 1 fjiksVZ esa eq>s ijs'kku djus esa viuh tsBkuh dk vge jksy jgk] ;g ckr ugha fy[kkbZ vt [kqn dgk ;g ckr eq>ls dHkh iwNh ugha xbZA eSa 'kknh ds rhu eghus ckn vkjih,llh ds FkMZ xzsM Vhpj ds ,Xtke esa vih;j gqbZ FkhA vt [kqn dgk fd esjs llqjky okys ;g pkgrs Fks fd eSa tkWc d:a mUgksaus ;g dgk Fkk fd 'kknh blfy, djh gS fd rqe ch,M djks ;g ckr lgh gS fd llqjky okyksa }kjk ch,M djus vkSj blfy, 'kknh djus dh ckr esjh ,QvkbZvkj vkSj iqfyl c;ku izn'kZ Mh&1] izn'kZ Mh&2 esa fy[kh gqbZ ugha gS vkSj Qsfeyh dksVZ ds c;ku izn'kZ Mh&4 vkSj tokc izn'kZ Mh 5 esa fy[kh gqbZ ugha gSA ;g ckr lgh gS fd 'kknh ds rhu eghus ckn vkjih,llh ds ,Xtke esa vih;j gksus ds fy, eSa ihgj vkbZ Fkh vt [kqn dgk eq>s llqjky okyksa us Hkstk FkkA ;g lgh gS fd FkMZ xzsM Vhpj ds ,Xtke dh ckr eSaus vius iqfyl c;ku inz'kZ Mh&1 izn'kZ Mh&2 o ikfjokfjd U;k;ky; ds c;ku izn'kZ Mh&4 esa crk;k Fkk buesa D;ksa ugha fy[kk eq>s ugha irk vkSj ,QvkbZvkj esa Hkh ;g (Downloaded on 28/06/2019 at 11:12:13 PM) (7 of 9) [CRLR-1080/2018] ckr fy[kh gqbZ ugha gS D;ksafd ,QvkbZvkj esa lkjh ckr ugha vkrh gSA ,QvkbZvkj ds nks ;k rhu ist gSaA^^ On perusal of statement of PW2-father and PW3-mother of the complainant, it reveals that no specific role was attributed to Virendra Singh (brother-in-law) and Smt. Priyanka (sister-in-law).
The statements of father and mother of the complainant were hearsay statement and could not have been relied for proceeding against respondent Nos.2 and 3, Virendra Singh (brother-in-law) and Smt. Priyanka (sister-in-law).
On perusal of statements of PW1 to PW3 and the evidence, it appears that respondent Nos.2 and 3 (Virendra Singh and Smt. Priyanka) have not committed any offence, for which, they can be tried together with the main accused. In the case of Labhuji Amratji Thakor (supra), the Apex Court held as under:
"6. Section 319 Cr.P.C. provides that where, in the course of any in- quiry 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 Court may proceed against such person for the offence which he appears to have committed. The Court, thus, during the trial on the basis of any evidence is fully empowered to proceed against any person, whose name was not even included in the F.I.R. or the Charge Sheet. The parameters of exercise of power under Section 319 Cr.P.C has been explained by this Court time and again. It is sufficient to refer to Con- stitution Bench judgment in Hardeep Singh (supra), where this Court had considered the following issue amongst others:-
"6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the ac- cused summoned will in all likelihood be convicted?"
7. The Constitution Bench judgment in the above judgment has held that under Section 319 Cr.P.C. Court can proceed against any per- son, who is not an accused in a case before it. The Constitution Bench, however, has held that the person against whom the Court (Downloaded on 28/06/2019 at 11:12:13 PM) (8 of 9) [CRLR-1080/2018] decides to proceed, "has to be a person whose complicity may be in- dicated and connected with the commission of the offence".
8. Answering the Issue No.(iv) as noticed above, in Paragraph Nos. 105 and 106 of the judgment, following was laid down by the Consti - tution Bench:-
"105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised spar- ingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."
The complainant appeared as PW1. She admitted in her statement that she had not been living at her matrimonial home since 4th August, 2005. She also admitted that on 19th September, 2004, she went for medical check up along with her husband. The mere fact that court has power under Section 319 Cr.P.C. to proceed against any person who is not named in the FIR or in the (Downloaded on 28/06/2019 at 11:12:13 PM) (9 of 9) [CRLR-1080/2018] charge sheet. It does not mean that whenever in a statement recorded before the court, name of any person is taken, the court has to mechanically issue process under Section 319 Cr.P.C. The court has to consider substance of the evidence. The learned trial court after recording its satisfaction that the evidence on record as revealed by the statements of PW1, PW2 and PW3 does not establish prima facie case.
Learned trial court taking note of substance of the evidence, which has come before it and the law laid down by the Constitution Bench in the case of Hardeep Singh Vs. State of Punjab & Ors., reported in 2014 (3) SCC 92 while rejecting the application under Section 319 Cr.P.C has applied test i.e. "more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction" and has given cogent reasons for not exercising power under Section 319 Cr.P.C.
In view of the discussions/observations made above, I do not find any illegality or perversity in the impugned order 24 th May, 2018 rejecting the application under Section 319 Cr.P.C.
Accordingly, the criminal revision petition is dismissed.
(GOVERDHAN BARDHAR),J FATEH RAJ BOHRA /6 (Downloaded on 28/06/2019 at 11:12:13 PM) Powered by TCPDF (www.tcpdf.org)