Ashok Kumar and Another vs The State of Rajasthan

B.R. Arora, J.—The petitioners, by this miscellaneous petition, have challenged the order dated 14.9.92, passed by the Additional Munsif and Judicial Magistrate, First Class, Sri Ganganagar, by which the learned Magistrate took cogizance against petitioners Ashok Kumar and Smt. Sushma for the offences u/s 498A and 406 I.P.C. and issued bailable warrants in the sum of Rs. 2000/- to secure the presence of the petitioners.

Complainant Uma Devi W/o Jagdish Rai, on 7.1.92, filed a complaint in the Court of the Additional Chief Judicial Magistrate, Sri Ganganagar, against Jagdish Rai, Prakash Chandra, Gyan Devi, Purshottam Lal, Pradeep Kumar, Sulochna, Sushma and Ashok Kumar (or the offences under Sections 406 and 498A I.P.C. It was alleged in the complaint that the complainant was married to the accused No. l Jagdish Rai as per the Hindu customs and rites and at the time of marriage, her parents gave various items mentioned in para No. l as dowry. Sometime after the marriage, the respondents stated cruelly treating her and accused No. 2 to 9 instigated the accused No. l the husband of the complainant) to force her to bring some more money from her parents and at this instigation the accused No. l asked the complaint to bring Rs. 50,000/- and a Hero Honda Motor-Cycle from her parents, upon which she told him that her parents had already given sufficient dowry at the time of her marriage and, now, her father is not in a position to give more money; whereupon the accused No. l started giving beatings to her and asked that if she would not bring the money and the Motor-Cycle then she will not be kept in the house. The other accused, also, started giving betings to her. The parents of the complainant called the accused No. 1 and tried to pacify him but all those attempts went in vain. Thereafter a Panchayal was called but the accused party continued to give beatings to the Complainant and sometime she was not even supplied the food and accused No. 8 and 9 (the present petitioners) whenever they used to come to Hanumangarh, accused No. 8 used to give beatings to her and stated that they would turn her out from the house. The complainant started resisting the respondents and thereafter, five months before the date of presentation of the complaint, the accused turned her out from the house. The complaint, filed by the complainant, was referred by the learned Magistrate for further investigation u/s 156(3) Cr.P.C. to the Station House Officer, Police Station, Sadar, Sri Ganganagar. The police, after necessary investigation, presented the challan against Jagdish Rai, the husband of the complainant-, Prakash Chandra (father-in-law of the complainant), Smt. Gyan Devi (mother-in-law of the complainant), Purshottam Lal and Pradeep Kumar (brothers-in-law of the complainant), Sulochna and Sushma (sisters-in-law of accused No. l Jagdish Rai). The police, however, submitted the Final Report with respect to Smt. Sushma (sister-in-law of the complainant) and Ashok Kumar husband of Smt. Sushma). On the submission of the charge-sheet, Cognizance against these accused, against whom the charge-sheet was presented, was taken and the copies of the Challan-papers were given to their counsel. On 3.8.90, an application u/s 319 Cr.P.C. was moved by the learned Counsel for the complainant for taking cognizance against Smt. Sushma W/o Ashok Kumar and Ashok Kumar, who are sister and brother-in-law of Jagdish Rai. The learned Magistrate, vide order dated 14.9.92, took cognizance against the petitioners for the offences under Sections 406 and 498A I.P.C and issued bailable warrants in the sum of Rs. 2000/- for securing their presence. It is against this order that the petitioners have presented this miscellaneous petition.

It is contended by the learned Counsel for the petitioners that Smt. Sushma is the sister-in-law of the complainant, who was married to Ashok Kumar ten years before the date of filling the complaint and they are residing at Bhatinda (Punjab) and not at Hanumangarh, which has been admitted by the witnesses in their statements recorded u/s 161 Cr. P.C. and the allegations made against the petitioners are vague and general in nature. It has further been submitted by the learned Counsel for the petitioner that they have been implicated in this case in order to wreck the personal vengeance and the learned Magistrate, while taking the cognizance against the petitioners, has not taken into consideration the fact that the allegations, made in the complaint, are patently absurd and inherently improbable and on the basis of it, no person of reasonable prudence can reach to a conclusion that there are sufficient ground for proceeding against the petitioners and, therefore, the complaint, filed by the complainant, deserves to be dismissed and the order taking cognizance against the petitioners deserves to be...and set-aside. In support of its contention, the learned Counsel for the petitioners has placed reliance over: Kishun Singh and Others Vs. State of Bihar, It is further contended by the learned Counsel for the petitioners that the power to summon additional accused, against whom no challan has been filed by the police u/s 319 Cr.P.C. can be exercised only after some evidence is led by the prosecution and not before that as Section 319 Cr.P.C. is attracted for summoning the additional accused only after production of the evidence by the prosecution. In support of its contention, learned Counsel for the petitioners has placed reliance over: Krishna Lal and Ors. v. The State of Harayana and Ors. 1991(1) Crimes 43, Darshan Lal and Ors. v. The State of Haryana and Ors. 1991(2) Crimes 77 and Dr. Vinod Kumar Goyal and Ors. v. The Union Territory and Ors. 1991(3) Crimes 2333 . Learned Counsel of the complainant (respondent No. 2), on the other hand, has supported the order passed by the learned Magistrate and submitted that the scope of enqurity u/s 202 Cr.P.C. is extremely limited only to ascertain the truth or false-hood of the allegations made in the complaint and in the evidence produced by the complainant and when once the cognizance has been taken by the learned Magistrate, exercising its discretion judiciously then it is not open for the High Court to substitute its own discretion for that of the Magistrate or to examine the case on merit with a view to find-out whether or not the allegations made in the complaint arc proved or will ultimately and in the conviction of the accused and the order of taking the cognizance cannot be interfered with. In support of its contention, the learned Counsel for the complainant has placed reliance over: Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others,

I have considered the submissions made by the learned Counsel for the parties.

In view of the judgment of the Supreme Court in the case of Kishan Singh v. The State of Bihar (Supra), the powers u/s 319 Cr.P.C. cannot be invoked in a case where no evidence has been led at the trial wherefrom it can be said that the additional accused appear to have been involved themselves in the commission of the crime alongwith other accused already sent-up for trail by the prosecution but the powers for summoning the additional accused and taking cogizance against them can be exercised u/s 190 Cr.P.C. At the time of taking cognizance, it is the duty of the trial Court to embark upon an enquiry by carefully considering the complaint, the evidence collected by the investigating agency during investigation, namely, the statements of the witnesses recorded and the documents collected and to search-out from the complaint and the evidence collected during investigation: whether any person other than those, against whom the charge-sheet has been filed and who are before the Court, are, in any way, involved in the crime? If the Court Comes to this conclusion that there are some other person except those who are present before the Court, who have participated in the crime and should be tried alongwith the accused already before the Court, then the cognizance against those accused u/s 190 Cr. P.C. can be taken. Even in the case of Kishan Singh, on which reliance has been placed by the learned Counsel for the petitioners, the Apex Court has observed that though the provisions of Section 319 Cr. P.C. cannot be invoked but the additional accused can be summoned by invoking the provisions of Section 193 Cr.P.C.

It is true that at the stage of issuing the process or taking the cognizance, the scope of enquiry is very such limited and at that stage the Magistrate is mainly concerned with the allegations made in the complaint or the evidence collected by the investigating agency during investigation to prima facie satisfy whether there are sufficient grounds to proceed-with against the accused. A detailed discussion on the merit or de-merit of the case is not necessary to be gone into at that stage. The falsehood or the truth of the allegations, made in the complaint, are to be ascertained on the material placed by the complainant or the investigating agency before the Court for the limited purpose of finding out whether a prima facie case for proceeding against the accused and for issuing the process has been made-out. At this stage, only the case of the complainant has to be examined and the defence available to the accused is not required to be gone into as the accused have no locus standi at that stage. While considering the case for issuing the process the Magistrate has to take into consideration the inherent probabilities appearing tin the evidence led by the complainant or collected by the investigating agency in support of the allegations made in the complaint. The discretion, given to the Magistrate in this matter, has to be judiciously exercised by him and if the discretion has been exercised by the Magistrate in the right perspective and judiciously and not arbitrary then the High Court is not supposed to substitute its own discretion and the examine the case on merit. The complaint or the proceedings can be quashed if the complaint does not constitute any offence or the allegations made in the complaint are absurd and inherently improbable and the proceedings are malafide and maliciously instituted with an ulterior motive of wrecking the personal vengeance. In the light of the position of law, now, I have to see: whether the discretion has been rightly exercised by the learned Magistrate in taking cognizance against the petitioners?

The investigating agency, during the course of investigation, recorded the statements of several witnesses, including the father of the complainant. In the complaint, the address of the petitioners has been given as "Satta Company, Sri Ganganagar" and the father of the complainant has, also, stated that petitioner Ashok Kumar in working in Satta Company, Sri Ganganagar. Three other witnesses Raj Kumar, Subhash Chand S/o Hardayal Mal and Subhash Chand S/o Madan Lal have stated that Sushma (Sister of Jagdish Rai) married ten years before and she and her husband Ashok Kumar casually visit to the house of accused-party and last time they came about two years before and after the marriage of Jagdish Rai, Ashok Kumar and Sushma never came to Hanumagarh and they are residing at Bhatinda (Punjab). The police submitted the Final Report qua these petitioners. The learned Magistrate, while taking cognizance against the petitioners, has not taken into consideration the Final Report or the other evidence collected by the prosecution during investigation and without considering that evidence and without application of mind, the learned Magistrate passed the order dated 14.9.92, taking cognizance against the petitioners. The learned Magistrate has not exercised the discretion judiciously and as such the order taking cognizance against the petitioners deserves to be quashed and set-aside. However, the learned Magistrate will be free to proceed-with the matter against these accused, if after considering the full evidence he finds a prima facie case against the petitioners to proceed-with.

In the result, the miscellaneous petition, filed by the petitioners, is allowed. The order dated 14.9.92, passed by the learned Magistrate, taking cognizance against the petitioners, is set-aside and the cognizance, taken against the petitioners, is quashed and set-aside.