Het Ram and Others vs State of Rajasthan

C.M. Totla, J.—Vide Magisterial order of 12.10.2006, cognizance for the offences of Section 498A, 406 IPC taken and case registered against the petitioner. Petitioner requests quashing of above cognizance order.

Considered arguments of learned counsel for the petitioner, respondent and Public Prosecutor. Perused the record.

The facts necessary for disposal of this petition seems that on March 23rd, 2006 complainant R2 submitted a complaint before the court of ACJM alleging that she married to son of P1 & P2 in July 2002 and dowry alongwith ornaments and Rs. 1 lakh cash given a son two years subjected to cruelty and harassment in order to procure dowry FIR No. 307/05 was lodged by her on 14.09.2005 but in October, 2005 as husband accepted his mistakes so compromise in October, 2005 after compromise, after few days again began improper activities for obtaining cash money as dowry due to coercion complainant had to agree on 10.01.2006 husband again beating her asked her to bring money from her father on 21.01.2006 when she and husband in a marriage function at her parent''s house, again threatening her asked to bring money called her parents on January 23rd and asked them for money. Complaint forwarded to PS and FIR No. 97 of 2006 registered.

After investigation, on July 06th, chargesheet is filed for the offence of Section 498 A and 406 IPC against husband on the very same day of presentation of charge-sheet i.e. 06.07.2006 on behalf of complainant was submitted an application u/s 190 Cr.P.C. for taking cognizance against five others also. After intervening two adjournments, cognizance taken vide impugned order of 12.10.2006.

Learned counsel for petitioners argued that (i) chargesheet on July 06th was submitted only against husband on very same day, case registered only against complainant, (ii) cognizance for petitioners is taken only on 12th October i.e. subsequent to original and first cognizance order of July 06th, (iii) cognizance already taken as per order of July 06th so further order of cognizance vide order dated 12.10.2006 is contrary to law, (iv) as per complainant itself earlier FIR at least not resulted in cognizance, (v) no material whatsoever for taking cognizance against the petitioners learned Magistrate not considered final report in right perspective.

On behalf of petitioner argued that proceedings if any, for petitioners could have been only u/s 319 Cr.P.C. and not after first order taking of cognizance and registering case on July 06th further submitted that similar question is referred by Hon''ble the Apex Court to larger Bench, so till the question is finally decided, proceedings in this case may be stayed or postponed. In support of contention reliance placed on (i) 2006 (2) CCC 714 (S.C.) : 2006 (1) SCC 273, Dharam Pal v. State of Haryana (ii) 1999 (2) RLW 784, Ibrahim Khan v. State (iii) RLW 1997 (3) 1928, Suresh v. State.

Argued on behalf of petitioners is also that petitioners are in no way connected with the affairs between their son. and complainant because they are residing separately to them. Inviting attention towards ration card submitted that cognizance is bad and not-sustainable even on facts.

Learned counsel for the respondent complainant argued that on July 06th, charge-sheet submitted was only against petitioner but on the same day application for registering against the petitioners submitted which is mentioned in the order of July 06 that the case is Magistrate triable and till framing of charge-Magistrate can direct registration of case for the persons against whom sufficient material exists for proceeding further learned Magistrate after considering all the statements recorded u/s 161 Cr.P.C. has registered case vide impugned order dated 12.10.2006 disputed questions of fact are not to be examined in this petition. Argued that order is upheld in revision. Reliance placed on decisions (i) 2001 CLR. (SC) 844, Swil Ltd. v. State of Delhi & Anr. (ii) 2005 (3) CCC 279 (Rajasthan) : 2005 (2) HDD 174 (Raj.),Kishan Lal v. State of Raj. & Anr. (iii) Rajinder Prasad Vs. Bashir and Others, .

In reply on behalf of petitioner submitted that decision of 2001 ACJ 389 (S.C.) : 2005 (2) RDD 174 (Raj) is based on case of Dharam Pal 2006 (2) CCC 714 (S.C.) : 2006 (1) SCC 273 which has been referred to larger Bench.

In this particular case under consideration, FIR is registered for the offences under Sections 498A & 406, IPC in the FIR also are names of petitioners, though police report is only for husband cognizance taken on 06.07.2006, the day of submission of charge-sheet against only husband as charge-sheet was only for him on the same day, that is 06.07.2006, application submitted by complainant for impleading petitioners in the array of accused on 12.10.2006, case also registered against petitioners i.e. before framing of charges, at stage prior to hearing of framing of charges.

FIR, Charge-sheet and cognizance is for the offences triable by the Magistrate. On 16.07.2006, cognizance is taken and case registered for one offender. Cognizance is taken only once, but slight is difference between cognizance of offence and offender. Cognizance is taken of the offence and not offender as is held also by Hon''ble the Apex Court in above citations the Magisterial Court can issue process for the persons against whom there is sufficient material at a stage when the Magistrate is neither holding inquiry, nor the trial has begun.

So in the instant case, it cannot be said that the Magistrate had no authority to order issue of process and registration of case against the petitioners.

The present case, is registered on a police report. The impugned order is affirmed in revision by the learned Additional Sessions Judge vide order dated 31.07.2007. In course of proceedings, at the early stages; the petitioners shall be having all the opportunities to put forward every aspect of the case legal as well as factual.

For the reasons discussed above, the petition, having no force is to be rejected. The petitioners may raise all the grounds before the trial Court. Accordingly, the petition is dismissed.