IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._2120  OF 2009 (Arising out of S.L.P. (Crl.) No.2972 OF 2008)

Suman ...Appellant    

Versus

State of Rajasthan and another ...Respondents

J  U  D  G  M  E  N  T

G.S. SINGHVI, J.

1. Leave granted.

2. Whether the appellant, who was named as one of the accused in the  

complaint lodged by respondent No.2, Smt. Anita alleging harassment and  

torture at the hands of her husband and in-laws but qua whom the police  

filed negative final report, could be summoned under Section 319 of the  

Code  of  Criminal  Procedure  (for  short  ‘Cr.P.C.’)  and  whether  Judicial

Magistrate,  First  Class,  Sri  Ganganagar  (hereinafter  referred  to  as  ‘the  

Judicial  Magistrate’)  was  justified  in  taking  cognizance  against  the  

appellant under Section 498A of the Indian Penal Code (for short ‘IPC’) are  

the questions  which arise  for  determination  in this  appeal  filed against  

order  dated  10.3.2008  passed  by  the  learned  Single  Judge  of  the  

Rajasthan High Court in S.B. Criminal Misc. Petition No.1366 of 2007.

3. The appellant’s brother Pramod Kumar was married to respondent  

No.2 on 7.12.2000 at Sri Ganganagar.  After one year and four months,  

respondent No.2 submitted a complaint to the Judicial Magistrate alleging  

that due to her failure to bring sufficient dowry and meet the demand of  

her  in-laws,  she  was  subjected  to  physical  and  mental  cruelty  and  

harassment in different ways.  The learned Judicial Magistrate forwarded  

the complaint to the police under Section 156(3) Cr.P.C. for investigation.  

Thereupon,  FIR  No.150/2002  was  registered  at  police  station  Jawahar  

Nagar, District Sri Ganganagar for offences under Sections 406, 498A, 354,  

377 and 323 IPC.  During investigation, the police recorded the statements  

of  respondent  No.2  –  Smt.  Anita,  her  father  Shri  Jaipal,  mother  Smt.  

Savitri  Devi  and  four  other  persons,  namely,  Shri  Premnath,  Shri  

Hanuman Chautala, Shri Brijlal, Shri Kripal Singh and filed charge sheet on  

4.1.2003 against Pramod Kumar – husband of respondent No.2, Rukmani  

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Devi  –  mother-in-law  and  Ram  Kumar  @  Rampratap  –  father-in-law.  

Insofar as the appellant is concerned, the Investigating Officer opined that  

she was innocent because she was living at Bikaner with her husband and  

had  not  caused  harassment  to  respondent  No.2  or  made  demand  for  

dowry.   By  an  order  dated  5.8.2005,  the  learned  Judicial  Magistrate  

framed  charges  against  three  accused  and  adjourned  the  case  for  

prosecution evidence.  On 16.6.2006, the statement of respondent No.2  

was  recorded.   Thereafter,  an  application  was  filed  on  behalf  of  

respondent No.2 under Section 319 Cr.P.C. for issuing process against the  

appellant.  The learned Judicial Magistrate adverted to the contents of the  

complaint  filed  by  respondent  No.2,  the  statements  recorded  under  

Section 161 Cr.P.C. as also the statement made by respondent No.2 before  

the  court  and  held  that  prima  facie  case  was  made  out  for  taking  

cognizance against the appellant for offence under Section 498-A IPC.  He  

accordingly passed order dated 2.9.2006 and directed that the appellant  

be  summoned  through  bailable  warrant.   The  revision  filed  by  the  

appellant  against  that  order  was  allowed  by  Sessions  Judge,  Sri  

Ganganagar who held that in view of the bar contained in Section 468  

Cr.P.C., the Judicial Magistrate was not entitled to take cognizance of the  

offence allegedly  committed by the appellant  under Section 498-A IPC.  

The revisional order was set aside by the learned Single Judge of the High  

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Court in S.B. Criminal Revision Petition No.25 of 2007 and the matter was  

remitted  to  the  revisional  court  for  fresh  decision  in  the  light  of  the  

observations  made by him on the issue of  limitation  in  the context  of  

Section 473 Cr.P.C.

4. In compliance of the direction given by the High Court, the learned  

Sessions Judge reconsidered the revision filed by the appellant, adverted  

to  the  facts  narrated  in  the  complaint  filed  by  respondent  No.2,  the  

provisions of Sections 468 and 473 Cr.P.C. and held that the order passed  

by  the  learned  Judicial  Magistrate  cannot  be  treated  as  barred  by  

limitation.  The learned Sessions Judge then noted that while deciding the  

application filed under Section 319 Cr.P.C., the learned Judicial Magistrate  

had taken cognizance of the contents of the complaint filed by respondent  

No.2,  which  were supported  by  the  statements  recorded by the police  

under Section 161 Cr.P.C. as also the statement made by respondent No.2  

before the court under Section 164 Cr.P.C. specifically alleging that  the  

appellant was one of the persons involved in committing the crime and  

approved  the  order  passed  by  the  learned  Judicial  Magistrate.   The  

relevant portion of order dated 16.8.2007 passed by the learned Sessions  

Judge is reproduced below:-

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“Now, it is to be seen as to whether, the cognizance order  taken against the revision petitioner by the subordinate court,  is pure, valid and appropriate.  At the state of the revision, the  revisional  court  has  to  see  as  to  whether  prima  facie  any  sufficient  grounds  are  available  on  the  file,  by  which  proceedings could be initiated against the revision petitioner.  It  is  perceived  from  perusal  of  the  order  passed  by  the  subordinate court that at the time of passing of order upon  the application of 319 Cr.P.C., while critically appreciating the  first information report, statements of the witnesses recorded  under  Section  161  Cr.P.C.,  and  the  statement  of  the  complainant recorded before the court, cognizance has been  taken about the offence under Section 498-A of the Code of  Criminal  Procedure.   I  have  also  perused  the  file.   The  complainant has got indicated the name of her sister-in-law  (Nanad) Suman in her complaint about admonishing her on  dowry demands; and during the course of investigations also,  in  the  statement  under  section  161  Cr.P.C.  of  the  complainant;  witnesses  Jaipal,  Savitri  Devi,  Prem   Nath,  Hanuman, Brijlal, Kripal Singh, name of the revision petitioner  Suman  has  been  got  clearly  indicated  having  included  amongst the persons involved in committing of the offence.  The statement of the complainant which have been recorded  on  oath  before  the  court,  therein  also,  evidence  has  been  adduced  against  Suman.   Apart  from these,  in  the  letters  written  by  the  complainant  to  her  parents,  instigating  her  parents  by  Suman  over  the  telephone  against  the  complainant,  and  upon  her  having  return  conduct  cruel  behaviour with her have been disclosed.  On the basis of all of  these facts and the available evidences, prima facie grounds  are available for initiating proceedings under Section 498-A of  the Indian Penal Code.”

5. The learned Sessions Judge also considered the argument made on  

behalf  of  the appellant  that  cognizance  ought  not  to  have been taken  

against her because she was married much before the marriage of the  

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complainant and was living with her in-laws at Bikaner, but declined to  

quash the order of the learned Judicial Magistrate by observing that prima  

facie  there  was  sufficient  ground  for  taking  cognizance  against  the  

appellant  and  that  she  will  have  full  opportunity  to  cross-examine  the  

witnesses.

6. The appellant challenged the revisional order before the High Court  

by filing a petition under Section 482 Cr.P.C. but could not convince the  

learned Single Judge to interfere with the order passed under Section 319  

Cr.P.C.  

7. Shri S.K. Keshote, learned senior counsel appearing for the appellant  

argued that after having accepted the negative final report submitted by  

the  police  qua  the  appellant,  the  learned  Judicial  Magistrate  was  not  

entitled to take cognizance against her on the basis of material collected  

by the police  during investigation.   Learned senior  counsel  emphasized  

that  when  the  Investigating  Officer  did  not  find  any  valid  ground  to  

implicate the appellant as an accused and the final report was accepted by  

the competent court, the self-same statement made by respondent No.2  

under Section 164 Cr.P.C. could not be made basis for entertaining the  

application filed under Section 319 Cr.P.C.   He submitted that  issue of  

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summons against the appellant is nothing but an abuse of the process of  

the  court  and  the  High  Court  committed  serious  error  by  refusing  to  

exercise power under Section 482 Cr.P.C.    

8. Learned counsel for the respondents supported the impugned order  

and argued that the High Court did not commit any error by refusing to  

exercise  power  under  Section  482  Cr.P.C.  because  the  learned Judicial  

Magistrate and the learned Sessions Judge concurrently found that prima  

facie  there  was  sufficient  material  for  taking  cognizance  against  the  

appellant.

9. We have considered the respective submissions.  Section 319 Cr.P.C.  

reads as under:-

319. Power to proceed against other persons appearing  to be guilty of offence.—(1) Where, in the course of any  inquiry  into,  or  trial  of,  an  offence,  it  appears  from  the  evidence  that  any  person  not  being  the  accused  had  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.

(2) Where such person is not attending the Court he may be  arrested or summoned, as the circumstances of the case may  require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest  or upon a summons, may be detained by such Court for the  

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purpose of the inquiry into, or trial of, the offence which he  appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1) then—

(a)  the  proceedings  in  respect  of  such  person  shall  be  commenced afresh, and witnesses reheard;

(b)  subject  to  the  provisions  of  clause  (a),  the  case  may  proceed as if such person had been an accused person when  the  Court  took  cognizance  of  the  offence  upon  which  the  inquiry or trial was commenced.

10. A somewhat similar provision was contained in Section 351(1) of the  

Code of Criminal Procedure, 1898 [for short, 1898 Code] under which it  

was provided that any person attending a criminal court, although not  

under arrest or upon a summons, may be detained by such Court for  

the purpose of inquiry into or trial of any offence of which such Court  

can take cognizance and which,  from the evidence,  may appear  to  

have been committed,  and may be proceeded against  as if  he had  

been arrested or summoned.  Sub-section (2) of Section 351 provided  

that in such a situation the evidence shall be re-heard in the presence  

of the newly added accused. In its 41st Report, the Law Commission  

noted that the power conferred upon a criminal court under Section  

351 of the 1898 Code could be exercised only if such person happen to  

be attending the court and he could then be detained and proceeded  

against,  but there was no express provision for summoning such a  

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person  if  he  was  not  present  in  the  court.   The  Law  Commission  

recommended  that  a  comprehensive  provision  be  enacted  so  that  

whole  case  against  all  known  suspects  could  be  proceeded  

expeditiously and that cognizance against the newly added accused  

should be taken in the same manner as against the other accused.  

The  recommendations  made  by  the  Law  Commission  led  to  

incorporation  of  Section 319 in its  present form in  Chapter  XXIV of  

Cr.P.C. which contains general provisions as to inquiries and trials.   

11. Section 319 Cr.P.C. applies to all the Courts including the Sessions  

Court.  It empowers the Court to add any person, not being the accused  

before it, but against whom there appears during trial sufficient evidence  

indicating his involvement in the offence, as an accused and direct him to  

be tried along with other accused.  If such person is not attending the  

Court, he can be arrested or summoned.  If he is attending the Court,  

although not under arrest or upon a summons, he can be detained by such  

Court  for  the purpose of  inquiry  into,  or  trial  of  the  offence which he  

appears to have committed.  Sub-section (4) lays down that where the  

Court proceeds against any person under sub-section (1), the proceedings  

in respect of such person shall be commenced afresh and witnesses are  

reheard.   A reading of the plain language of sub-section (1) of Section  

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319 Cr.P.C. makes it clear that a person not already an accused in a case  

can be proceeded against if in the course of any inquiry into or trial of an  

offence it appears from the evidence that such person has also committed  

any offence and deserves to be tried with other accused.  There is nothing  

in the language of this sub-section from which it can be inferred that a  

person who is named in the FIR or complaint but against whom charge-

sheet is not filed by the police, cannot be proceeded against even though  

in the course of any inquiry into or trial of any offence the Court finds that  

such  person  has  committed  any  offence  for  which  he  could  be  tried  

together with the other accused.

12. The question whether a Sessions Court can take cognizance against  

a  person  qua  whom there  is  no  committal  order  was  considered  and  

answered in affirmative in  Joginder Singh and another v.  State of  

Punjab and another (1979) 1 SCC 345.  The facts of that case were that  

on  a  complaint  made  by  one  Mohinder  Singh,  a  criminal  case  was  

registered at Police Station Dakha against Joginder Singh, Ram Singh (the  

two appellants),  Bhan Singh,  Darshan Singh and Ranjit  Singh.   During  

investigation police found Joginder Singh and Ram Singh to be innocent  

and,  therefore,  charge-sheet  was submitted only  against  the remaining  

accused.   The learned magistrate  committed  the  three accused  to  the  

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Sessions Court.  The learned Additional Sessions Judge, Ludhiana framed  

charges against the three accused for offences under Sections 452, 308  

and 323 IPC read with Section 34 IPC.  In their evidence, Mohinder Singh  

and Ajaib Singh implicated both the appellants.   Thereupon, the Public  

Prosecutor filed an application for summoning the appellants.  On behalf of  

the appellants, it was argued that the learned Additional Sessions Judge  

had no jurisdiction or power to summon the appellants and array them as  

accused because they had neither been charge-sheeted nor committed to  

stand  trial.   The  learned  Additional  Sessions  Judge  negatived  the  

contention  of  the  appellants  and  directed  that  they  be  impleaded  as  

accused.  The High Court dismissed the revision filed by the appellants.  

This Court noticed the provisions of Sections 193, 207-A and 209 Cr.P.C.  

and observed:

It is true that there cannot be a committal of the case without  there being an accused person before the Court, but this only  means  that  before  a  case  in  respect  of  an  offence  is  committed  there  must  be  some  accused  suspected  to  be  involved in the crime before the Court but once the case in  respect of the offence qua those accused who are before the  Court is committed then the cognizance of the offence can be  said to have been taken properly by the Sessions Court and  the  bar  of  Section  193  would  be  out  of  the  way  and  summoning of additional persons who appear to be involved  in  the  crime  from  the  evidence  led  during  the  trial  and  directing them to stand their trial along with those who had  already been committed  must  be regarded as incidental  to  

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such cognizance and a part of the normal process that follows  it; otherwise the conferral of the power under Section 319(1)  upon the Sessions Court would be rendered nugatory. Further  Section 319(4)(b) enacts a deeming provision in that behalf  dispensing with the formal committal order against the newly  added accused. Under that provision it is provided that where  the Court proceeds against any person under sub-section (1)  then the case may proceed  as if  such person had been an  accused  person  when  the  Court  took  cognizance  of  the  offence upon which the inquiry or trial  was commenced; in  other words, such person must be deemed to be an accused  at the time of commitment because it is at that point of time  the Sessions Court in law takes cognizance of the offence.

In the above context it will be useful to refer to a decision of  this Court in Raghubans Dubey  v. State of Bihar where this  Court has explained what is meant by taking cognizance of an  offence. The appellant was one of the 15 persons mentioned  as the assailants  in the first  information report.  During the  investigation the police accepted the appellant’s plea of alibi  and filed a charge-sheet against the others for offences under  Sections  302,  201  and  149  IPC,  before  the  Sub-Divisional  Magistrate.  The Sub-Divisional  Magistrate  recorded that  the  appellant was discharged and transferred the case for inquiry  to another Magistrate,  who, after  examining two witnesses,  ordered  the  issue  of  a  non-bailable  warrant  against  the  appellant,  for  proceeding  against  him along  with  the  other  accused under Section 207-A of the old Code. The order was  confirmed by the Sessions Court and the High Court and in  further appeal to this Court it was held first, that there could  be no discharge of the appellant as he was not included in the  charge-sheet  submitted before the Magistrate  by the police  and,  second that  the appellant  could be proceeded against  along with other accused under Section 207-A Cr PC and this  Court  confirmed  the  order  of  the  Magistrate.  One  of  the  contentions urged before this Court was that the Magistrate  had  taken  cognizance  of  the  offence  so  far  as  the  other  accused were concerned but not as regards the appellant and  with  regard  to  this  contention  Sikri,  J.  (as  he  then  was)  observed as follows:

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In  our  opinion,  once  cognizance  has  been  taken  by  the  Magistrate,  he takes  cognizance  of  an offence and not  the  offenders;  once he takes cognizance of an offence it  is his  duty to find out who the offenders really  are and once he  comes to the conclusion that apart from the persons sent up  by the police some other persons are involved, it is his duty to  proceed  against  those  persons.  The  summoning  of  the  additional accused is part of the proceeding initiated by his  taking cognizance of an offence. As pointed out by this Court  in Pravin Chandra Mody v. State of Andhra Pradesh the term  ‘complaint’  would  include  allegations  made  against  persons  unknown.  If  a  Magistrate  takes  cognizance  under  Section  190(l)(a) on the basis of a complaint of facts he would take  cognizance and a proceeding would be instituted even though  persons who had committed the offence were not known at  that  time.  The  same  position  prevails,  in  our  view,  under  Section 190(l)(b).

It  will  thus  appear  clear  that  under  Section  193  read with  Section 209 of  the Code when a case is  committed to the  Court  of  Sessions  in  respect  of  an  offence  the  Court  of  Sessions  takes  cognizance  of  the  offence  and  not  of  the  accused and once the Sessions Court is properly seized of the  case as a result of the committal order against some accused  the power under Section 319(1) can come into play and such  Court can add any person, not an accused before it, as an  accused  and  direct  him  to  be  tried  along  with  the  other  accused for the offence which such added accused appears to  have  committed  from  the  evidence  recorded  at  the  trial.  Looking at the provision from this angle there would be no  question of reading Section 319(1) subject or subordinate to  Section 193.

The argument that Section 319 Cr.P.C. excludes from its operation  

an accused who has been released by the police under Section 169 Cr.P.C.  

was rejected by the Court by making the following observations:

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The  said  expression  clearly  covers  any  person  who  is  not  being  tried  already  by  the  Court  and  the  very  purpose  of  enacting such a provision like Section 319(1)  clearly  shows  that  even  persons  who  have  been  dropped  by  the  police  during investigation but against whom evidence showing their  involvement in the offence comes before the criminal  court  are included in the said expression.

13. The  scope  of  Section  319  Cr.P.C.  was  considered  in  Municipal  

Corporation of Delhi v. Ram Kishan Rohtagi and others  (1983) 1  

SCC 1, in the backdrop of the fact that the High Court had, in exercise of  

its  power  under  Section  482  Cr.P.C.,  quashed  the  proceedings  taken  

against respondent Nos.1 to 5 of whom respondent No.1 – Ram Kishan  

Rohtagi  was  the  Manager  of  the  company  engaged  in  manufacturing  

Modern Toffees and respondent Nos.2 to 5 were its Directors.  This Court  

reversed  the  order  of  the  High  Court  insofar  as  respondent  No.1  was  

concerned,  but  upheld  the  same  in  respect  of  other  accused  and  

proceeded to observe:

“Although we uphold the order of the High Court we would  like to state that there are ample provisions in the Code of  Criminal  Procedure,  1973  in  which  the  Court  can  take  cognizance against persons who have not been made accused  and  try  them  in  the  same  manner  along  with  the  other  accused. In the old Code, Section 351 contained a lacuna in  the mode of  taking cognizance if  a new person was to be  added as an accused. The Law Commission in its 41st Report  (para 24.81) adverted to this aspect of the law and Section  319  of  the  present  Code  gave  full  effect  to  the  recommendation  of  the  Law  Commission  by  removing  the  

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lacuna which was found to exist  in  Section 351 of  the old  Code.”  

The  Court  then  referred  to  the  judgment  in  Joginder  Singh  and  

another v. State of Punjab and another (supra) and held:

“In these circumstances, therefore, if the prosecution can at  any stage produce evidence which satisfies the court that the  other accused or those who have not been arrayed as accused  against  whom  proceedings  have  been  quashed  have  also  committed the offence the Court can take cognizance against  them and try  them along with the  other  accused.  But,  we  would hasten to add that this is really an extraordinary power  which  is  conferred  on  the  court  and  should  be  used  very  sparingly  and  only  if  compelling  reasons  exist  for  taking  cognizance against the other person against whom action has  not been taken.”

14. In Lok Ram v. Nihal Singh and another (2006) 10 SCC 192, the  

Court examined the correctness of the direction given by the High Court  

for impelading the appellant as an accused in terms of Section 319 Cr.P.C.  

The  facts  of  that  case  were  that  two  daughters  of  Nihal  Singh  (the  

complainant) were married to two sons of the appellant – Lok Ram.  One  

of the daughters of Nihal Singh, namely, Saroj died on 14.9.2001.  Soon  

thereafter,  Nihal  Singh  filed  complaint  at  Police  Station  Fatehabad  

(Haryana)  alleging commission  of  offence under  Section 406 read with  

Section 34 IPC.  During investigation, the appellant claimed that he was  

serving  in  a  school  at  the  time  of  the  death  of  Saroj.   His  plea  was  

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accepted  by  the  Investigating  Officer  and  he  was  not  charge-sheeted.  

During trial, the complainant filed an application under Section 319 Cr.P.C.  

By  an  order  dated  6.9.2002,  the  learned  Sessions  Judge  rejected  the  

application.  That order was reversed by the High Court and a direction  

was  given  to  the  trial  court  to  proceed  against  the  appellant  by  

summoning him.  Before this Court, it was argued that the appellant could  

not be summoned under Section 319 Cr.P.C. because even though he was  

named in the FIR as an accused,  the police did not find any evidence  

against him and was not charge-sheeted.  While rejecting the argument,  

the Court referred to the judgments in Joginder Singh and another v.  

State  of  Punjab  and  another (supra),  Municipal  Corporation  of  

Delhi v. Ram Kishan Rohtagi and others (supra), Michael Machado  

and another v. Central Bureau of Investigation and another (2000)  

3 SCC 262, and observed:

“On a careful reading of Section 319 of the Code as well as  the  aforesaid  two decisions,  it  becomes clear  that  the  trial  court has undoubted jurisdiction to add any person not being  the accused before it to face the trial  along with the other  accused persons, if the court is satisfied at any stage of the  proceeding on the evidence adduced that  the persons who  have not been arrayed as accused should face the trial.  It is  further  evident  that  such  person,  even though had initially  been  named  in  the  FIR  as  an  accused,  but  not  charge- sheeted, can also be added to face the trial. The trial court  can take such a step to add such persons as accused only on  the basis of evidence adduced before it and not on the basis  

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of materials available in the charge-sheet or the case diary,  because such materials contained in the charge-sheet or the  case diary do not constitute evidence. Of course, as evident  from the  decision  in  Sohan  Lal v.  State  of  Rajasthan,  the  position of an accused who has been discharged stands on a  different footing.”

Power under Section 319 of the Code can be exercised by the  court suo motu or on an application by someone including the  accused already before it.  If  it  is  satisfied that  any person  other than the accused has committed an offence he is to be  tried together with the accused.  The power 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 is conferred on the court and  should be used very sparingly and only if compelling reasons  exist for taking action against a person against whom action  had not been taken earlier. The word “evidence” in Section  319 contemplates the evidence of witnesses given in court.  Under  sub-section  (4)(b)  of  the  aforesaid  provision,  it  is  specifically  made clear  that  it  will  be  presumed that  newly  added person had been an accused person when the court  took cognizance of the offence upon which the inquiry or trial  was  commenced.  That  would  show  that  by  virtue  of  sub- section (4)(b) a legal fiction is created that cognizance would  be  presumed  to  have  been  taken  so  far  as  newly  added  accused is concerned.”

(emphasis supplied)

15. In view of the settled legal position as above, we hold that a person  

who  is  named  in  the  first  information  report  or  complaint  with  the  

allegation that he/she has committed any particular crime or offence, but  

against whom the police does not launch prosecution or files charge-sheet  

or drops the case, can be proceeded against under Section 319 Cr.P.C. if  

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from the evidence collected/produced in the course of any inquiry into or  

trial of an offence, the Court is prima facie satisfied that such person has  

committed any offence for which he can be tried with other accused.  As a  

corollary,  we hold  that  the  process  issued  against  the  appellant  under  

Section  319  Cr.P.C.  cannot  be  quashed  only  on  the  ground  that  even  

though she was named in the complaint, the police did not file charge-

sheet against her.

16. Before proceeding  further,  we deem it  proper  to observe that  in  

some of the decisions, this Court has emphasized that discretion under  

Section 319 Cr.P.C. should be exercised cautiously and not as a matter of  

routine  –  Michael  Machado  v.  Central  Bureau  of  Investigation  

(supra),  Anil  Singh  and  another  v.  State  of  Bihar  and  another  

(2006)  13  SCC 421 and  Mohd.  Shafi  v.  Mohd.  Rafiq  and another  

(2007) 14 SCC 544.  In  Michael Machado’s  case, the Court was called  

upon  to  consider  whether  the  Metropolitan  Magistrate  was  justified  in  

summoning the appellants under Section 319 Cr.P.C. at the penultimate  

stage of the trial.  The first appellant in that case was the Chief Manager  

of Malad Branch of Corporation Bank at Mumbai and the second appellant  

was Chief Manager of Wadala Branch (Mumbai).  On a complaint lodged  

by Deputy Manager of the bank with the allegation that the bank has been  

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defrauded by certain persons resulting in financial loss to the tune of Rs.50  

lacs,  a  first  information  report  was  registered  by  the  police.   After  

investigation two charge sheets were filed before Metropolitan Magistrate  

against  4  persons.   After  perusing the charge sheets,  the Metropolitan  

Magistrate felt that the CBI, which had conducted the investigation, was  

shielding the appellants.  He, therefore, sought explanation from the CBI.  

After considering the explanation, the Metropolitan Magistrate opined that  

the Investigating Officer had committed an offence under Section 219 IPC  

and  issued  notice  to  him.   Simultaneously,  the  learned  Metropolitan  

Magistrate decided to implead the appellants as additional accused.  That  

order was challenged by the concerned Investigating Officer.  The High  

Court quashed the order but left it open to the Metropolitan Magistrate to  

take necessary action under Section 319 Cr.P.C. at an appropriate stage.  

Thereafter, the trial commenced against the four accused and as many as  

49 witnesses were examined by the prosecution.  Till that stage, learned  

Metropolitan  Magistrate  did  not  consider  it  necessary  to  implead  the  

appellants as accused.  However, when statements of the remaining three  

witnesses  were  recorded,  he  passed  a  brief  order  summoning  the  

appellants.   The  High  Court  upheld  the  order  of  the  Metropolitan  

Magistrate.  This Court quashed the summoning order by observing that  

though evidence of last 3 witnesses may create some suspicion against the  

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appellants but that was not sufficient for convicting the appellants for the  

offence of conspiracy.  The Court also felt that there was no warrant for  

wasting the massive evidence collected by the trial  Court against the 4  

accused.   In  the  course  of  judgment,  the  Court  made  the  following  

observation:

“The basic requirements for invoking the above section is that  it  should  appear  to  the  court  from the  evidence  collected  during trial or in the inquiry that some other person, who is  not arraigned as an accused in that case, has committed an  offence for which that person could be tried together with the  accused already arraigned.  It  is  not  enough that  the court  entertained  some  doubt,  from  the  evidence,  about  the  involvement of another person in the offence. In other words,  the court must have reasonable satisfaction from the evidence  already collected regarding two aspects. First is that the other  person has  committed  an offence.  Second is  that  for  such  offence that other person could as well be tried along with the  already arraigned accused.

But  even  then,  what  is  conferred  on  the  court  is  only  a  discretion as could be discerned from the words “the court  may proceed against such person”. The discretionary power  so  conferred  should  be  exercised  only  to  achieve  criminal  justice. It is not that the court should turn against another  person whenever  it  comes  across  evidence  connecting  that  other person also with the offence. A judicial exercise is called  for, keeping a conspectus of the case, including the stage at  which the trial  has  proceeded already and the quantum of  evidence collected till then, and also the amount of time which  the court had spent for collecting such evidence. It must be  remembered that there is no compelling duty on the court to  proceed against other persons.”

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17. In the light of the above, we shall now consider whether the learned  

Judicial Magistrate was justified in taking cognizance against the appellant  

under Section 498-A IPC or the satisfaction recorded by him for issuing  

process against the appellant under Section 319 Cr.P.C. is vitiated by any  

legal infirmity and the learned Sessions Judge and High Court committed  

an error by refusing to quash the order passed by him.  In the complaint  

filed by her, respondent No.2 alleged that after one week of the marriage,  

her  mother-in-law –  Rukmani  Devi  and nanad –  Suman (the  appellant  

herein)  told  her  that  in  the  marriage,  items  like  scooter,  fridge,  air-

conditioner  etc.  have  not  been given  and  the  marriage  party  was  not  

served  well;  that  mother-in-law  –  Rukmani  Devi  and  nanad  –  Suman  

forcibly took the complainant to a lady doctor and got implanted Copper-T  

so that she may not give birth to any child; that nanad – Suman started  

instigating the husband of the complainant either on phone or otherwise  

and thereupon, he not only used to assault, but also humiliate and torture  

the  complainant;  that  on  7.4.2002 the  husband gave beating  with  the  

belan and nanad – Suman snatched her hair  and forcibly  removed the  

rings.  In her statement made before the police under Section 161 Cr.P.C.,  

respondent No.2 reiterated all the allegations.  The father and mother of  

respondent No.2 and 4 other persons, whose statements were recorded  

under  Section  161  Cr.P.C.,  clearly  spelt  out  the  role  played  by  the  

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appellant  in  harassing respondent  No.2  and instigating  her  husband to  

inflict torture upon her.   Despite this, the police did not file charge-sheet  

against the appellant thinking that she had no occasion to make demand  

for  dowry  or  harass  respondent  No.2  because  she was living  with her  

husband,  Mahendra  Pal  at  Bikaner.   In  her  statement  recorded  under  

Section  164  Cr.P.C.,  respondent  No.2  again  made  specific  allegations  

against the appellant.  While deciding the application filed under Section  

319 Cr.P.C., the learned Judicial Magistrate noticed the allegations made  

by respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani  

Devi  and sister-in-law, Suman had castigated her for  insufficient  dowry  

and subjected her to physical and mental harassment and that the sister-

in-law had instigated her husband to inflict physical torture, which were  

supported by the statements recorded by the police under Section 161  

Cr.P.C.  The learned Judicial Magistrate further noted that in her statement  

under Section 164 Cr.P.C., the complainant has clearly spelt out the role  

played by the appellant in the matter of demand of dowry, physical and  

mental harassment and the fact that the complainant had made a specific  

mention about this in the letters written to her parents and opined that  

prima facie case was made out for issuing process against the appellant.  

Therefore,  it  must  be  held  that  the  learned  Judicial  Magistrate  had  

objectively  considered  the  entire  matter  and  judiciously  exercised  

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discretion  under  Section  319  Cr.P.C.  for  taking  cognizance  against  the  

appellant.  Although at one stage, the learned Sessions Judge allowed the  

revision filed by the appellant  and declared that  in view of  the bar  of  

limitation contained in Section 468 Cr.P.C., the learned Judicial Magistrate  

could not have taken cognizance against the appellant, the said order was  

set aside by the High Court and the matter was remitted for fresh disposal  

of the revision petition.  In the post remand order passed by him, the  

learned Sessions Judge independently examined the entire record and held  

that prima facie case was made out for initiating proceedings against the  

appellant herein under Section 498-A IPC.  Therefore, it is not possible to  

agree  with  the  learned  senior  counsel  for  the  appellant  that  issue  of  

summons against the appellant amounts to abuse of the process of the  

Court.

18. In the impugned order, the High Court has broadly referred to the  

factual matrix of the case and held that the orders passed by the learned  

Judicial Magistrate and Sessions Judge do not suffer from any illegality or  

perversity  warranting  interference  under  Section  482  Cr.P.C.   The  

approach adopted by the High Court is in consonance with the law laid  

down by this Court in State of Haryana v. Bhajan Lal (1992) Suppl.(1)  

SCC 335,  C.B.I.  v.  Ravi  Shankar  Srivastava  (2006)  7 SCC 188,  R.  

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Kalyani v. Janak C. Mehta (2009) 1 SCC 516 and Mahesh Choudhary  

v. State of Rajasthan (2009) 4 SCC 439.

19. In the result, the appeal is dismissed.

20. It is needless to say that if the trial Court has not proceeded with  

the case on account of pendency of the petition filed by the appellant in  

this Court, the concerned Court shall now proceed with the trial and decide  

the matter expeditiously.

……………………………….…J. [R.V. RAVEENDRAN]

………………………………..J. [G.S. SINGHVI]

New Delhi November 13, 2009

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