State vs Muniyamma and Others

G. Narendra, J.—This is a revision preferred by the State represented by the Chintamain Police.

The benefits is that:

The complainant had filed a complaint against her husband and all the petitioners who are the respondents herein alleging commission of offences under Sections 143, 323, 498A and 506 of IPC read with Section 149 of IPC and Sections 3 and 4 of Dowry Prohibition Act.

The petitioner police lodged a FIR vide FIR No. 112/2008, thereafter, the petitioner police after enquiry and examining several witnesses and recording their statements filed a charge sheet arraying the husband alone as the accused and other relatives of the husband were not sent up for trial. The charge sheet was filed in C.C. No. 531/2008. The prosecution itself having opted to array the husband alone as the accused without arraying other relatives as accused. After the inquiry, the trial commenced. At the commencement of trial, the complainant who is P.W. 1 deposed before the learned Magistrate. In the course of her deposition, the complainant appears to have reiterated the contents of the complaint before the investigating authority that is, the petitioner/police. After recording the examination-in-chief of P.W. 1/complainant, the prosecution thought it necessary and fit to move an application under Section 319 of Cr.P.C. The learned Magistrate took up the application without application of mind and solely based on the testimony of P.W. 1, proceeded to allow the application and directed the respondents herein to be arrayed as accused Nos. 2 to 8. While so allowing, the learned Magistrate has relied upon the reported decisions of the Apex Court and this Court reported in AIR 2008 SC 2342 and ILR 2005 Kar 3191 respectively. Reading of the order passed by the learned Magistrate would reveal that there has been no independent consideration of the material, that is evidence available before him. The Magistrate has not considered the fact, if P.W. 1 in the testimony [her examination-in-chief] has revealed any new material or evidence that was available even prior to the stage of inquiry or at the stage of trial. The records reveal that the statement alleging offences against the proposed accused Nos. 2 to 8 was available on record, even as on the date of filing of FIR. Despite the same, the prosecution did not deem it fit to array them as accused and the Hon''ble Court has accepted the final report submitted by the investigating agency whereby, only the husband/accused No. 1 was sent up for trial. That being the case and undisputed facts, it was incumbent on the Magistrate to have applied his mind and ought to have independently enumerated the reasons for directing the respondents to be arrayed as accused. This is a duty cast on the Magistrate and the Magistrate has failed to discharge the same. The learned Magistrate has proceeded in a mechanical manner and has blindly accepted the application preferred by the prosecution, even without examining the reasons as to why the said persons were not sent up for trial by the investigating agency, even though their names were available in the FIR itself, the learned Magistrate ought to have examined as to whether the statements and evidence placed before the Court along with the final report corroborate or contradict the evidence (examination-in-chief of P.W. 1). Even without a prima facie examination of these aspects, the trial Court has proceeded to allow the application in a mechanical way. Aggrieved, the respondent herein preferred Cr.R.P. No. 05/2009 before the Sessions Judge, FTC-II, Chintamain, who was pleased to reverse by his detailed order dated 20.01.2010 by setting aside the order of the trial Court and was pleased to reject the petition filed under Section 397 r/w. 399 of Cr.P.C. Aggrieved by this, the State is before this Court.

The submissions of learned SPP, Sri M. Narayana Reddy, for the State and Counsel for the respondents Sri M.D. Basavanna, is heard in the matter.

Reading of the provisions of Section 319 Cr.P.C. demonstrates that it should appear to the Court from the evidence that a person who has committed an offence along with the accused has not been sent up for trial and that the said person on the strength of the available evidence should be arrayed and should be tried together with the accused. In such circumstances, the Court is entitled to proceed and exercise the power under Section 319 of Cr.P.C. Thus, the provisions of Section 319 of Cr.P.C. should be broken down into three parts. One, there must be evidence. Two, there must be a pending trial or enquiry. Three, where there is possibility for the Court to array the person left out along with the accused and thereafter, the Court is entitled to proceed.

Thus, prima facie the provision mandates that there should be evidence to which the Court applies its mind and address itself to the issue as the necessity for arraying a third party as accused. In this background of facts, it is relevant to refer to the decisions rendered by the Five Judge Bench of the Hon''ble Apex Court reported in AIR 2014 SCC 1400 in the case of Hardeep Singh v. State of Punjab and Others, the head notes reads thus:

"Head Note: "(A) Criminal P.C. (2 of 1974), S. 319 -Adding new person as accused - Power of- Springs out of the doctrine judex damnatur cum nocens absolvitur- Section deserves to be given constructive and purposive interpretation that advances cause of justice.

(B) Criminal P.C. (2 of 1974), Ss. 319, 2(g)-Power to add new accused - Exercise of- Can only be on basis of material collected in inquiry by Court or Magistrate acting as Court.

(C) Criminal P.C. (2 of 1974), S. 319 -Power to add new accused - Section to be given liberal construction - Every word has to be given full effect.

(D) Criminal P.C. (2 of 1974), S. 2(g) -Inquiry - Commencement- Starts with filing of charge-sheet - Is an act of Magistrate and does not relate to investigation."

The Hon''ble Apex Court while dealing with the case under Section 319 of Cr.P.C. has categorically held that the power under Section 319 of Cr.P.C. is exercisable during the stage of inquiry to conclusion of trial that is, from the stage of submission of the final report till the conclusion of the evidence and commencement of argument.

It is undisputed fact that after the rejection of the application by the lower Appellate Court, the trial Court has proceeded with the trial of the accused that is, the husband of the complainant/P.W. 1. After the detailed trial, the learned Magistrate by judgment and order dated 13.05.2012 has been pleased to acquit the accused husband of the offences under Sections 498A, 323 and 506 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act. The said order of acquittal has become final with the State not having preferred an appeal. That being so, in the light of the law laid down by the Hon''ble Apex Court reported in Hardeep Singh Vs. State of Punjab and Others etc. etc., , this Court is of the opinion that the petition does not survive for consideration and no purpose will be served in the light of the acquittal of the accused and closure of the case and in the light of the law laid down by the Apex Court. This Court has no jurisdiction to exercise the power under Section 319 of Cr.P.C.

As stated above, even otherwise of facts, the order of the learned Magistrate suffers and vitiated by non-application of mind. Hence, the revision petition is rejected.

In the facts and circumstances of the case, there shall be no order as to costs.