This petition is filed u/s.482 Cr.P.C. to quash Annexure-I complaint pending before the Judicial First Class Magistrate Court-II, Kochi as C.C. No.1098/2005 by invoking the inherent jurisdiction. The above case was filed by the 2nd respondent alleging cruelty by the husband and relatives of the husband. After considering the entire materials on record, the learned Magistrate took cognizance under Section 498A IPC only against the 1st accused. The learned Magistrate specifically found that no offence is made out against the petitioners herein. On 6.3.2009, the defacto complainant, 2nd respondent was examined as PW1. Thereafter, she filed C.M.P.No.1081/2009 to implead the petitioners herein as additional accused 2 to 8 in the above case. According to the petitioners, there was no evidence adduced in the trial court to invoke Section 319 Cr.PC at that stage and when there is no materials to invoke Section 319 Cr.P.C., the cognizance of the offence taken against the petitioners is a mere abuse of the process of the Court. Hence, the petitioners pray to invoke the inherent jurisdiction u/s.482 Cr.P.C.
2. The 2nd respondent's allegation in Annexure-1 complaint was that the petitioner was married the 2nd respondent on 8.11.1993 at Pathumthirumal Devaswom temple, Palluruthy as per Hindu customary rites. In the wedlock, two daughters were born to them. While residing so, the accused ill-treated her demanding more amount as dowry. Subsequently, the marriage was divorced. In such circumstances, she filed Annexure-I complaint against the accused.
3. The learned counsel appearing for the petitioners contended that Annexure-IV order of the learned Magistrate is unsustainable in law and passed without considering the evidence. Section 319 Cr.P.C can be invoked only in exceptional circumstances. The learned Magistrate declined to take cognizance of the offence earlier. There is no oral or documentary evidence adduced by PW1 to invoke the powers vested in Section 319 Cr.P.C. The learned counsel for the petitioners relied decisions in Aboobakar Musalliar v. Inspector of Police [ILR 2009(4) Ker 200], Preeti Gupta v. State of Jharkhand [2010 (2) KLD 391 (SC)], Hardeep Singh v. State of Punjab and others [ (2014) 3 SCC 92].
4. The learned counsel appearing for the 2nd respondent strongly resisted the above contention and contended that the oral evidence adduced by PW1 is sufficient to invoke Section 319 Cr.P.C. The overt act of the petitioners was specifically mentioned by PW1, while she was adducing evidence in the trial Court. Therefore, the totality of the evidence shows that the petitioners are also to be tried together with the 1st accused.
5. In the light of the above argument, I refer Section 319 Cr.P.C., which reads as follows:
“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 persons 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.
(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 purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person shall be commenced then-
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re- heard.
(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.”
A close reading of Section 319 Cr.P.C. shows that if on the evidence collected or produced in the course of any inquiry 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, in such circumstances, the Court may proceed against such persons for the alleged offence, which he appears to have committed such offence. Therefore, there is no bar for issuing process against such persons. That settled legal position is explained in Aboobacker Mussaliar's case (supra), which held as follows: (para 18):
“18. Evidence envisaged in Section 319 is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The primary requirement for invoking Section 319 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 and that person could be tried together with the accused already arraigned. It is not sufficient that the Court entertained some doubt about the involvement of another person in the offence who is not an accused, on the evidence tendered. On the evidence adduced before the Court, the Court should satisfy that the person who is not arraigned before his as an accused appeared to have committed the offence and also that he could be tried along with the accused already facing trial.”
Another Constitution Bench of the Apex Court in Hardeep Singh's case (supra) held as follows: (para117.1 & 117.2) “117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an ofence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till “evidence” under Section 319 Cr.P.C. becomes available for summoning an additional accused.
117.2. Section 319 Cr.P.C. significantly uses two expressions that have to be taken note of i.s, (1) inquriy (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.”
Therefore, the averment of PW1 did not disclose any specific overt act against accused 2 to 8. There is no documentary evidence produced before trial Court for invoking Section 319 Cr.P.C. Even though PW1 stated that A2 to A8 assaulted her with hands, the details, as to whether she sustained any injury or undergone any treatment from any hospital are not disclosed in her oral testimony. The vague allegation itself is not sufficient to invoke Section 319 Cr.P.C. Apex Court in Preeti Gupta's case (supra) held as follows:
“Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering or ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society”
Considering the evidence adduced by PW1 during enquiry, I am of the opinion that evidence itself is not sufficient to attract Section 319 Cr.P.C. Therefore, it is a mere abuse of the process of the Court. The inherent power can be invoked by
the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of Court to otherwise to secure the ends of justice. While exercising such jurisdiction,this Court cannot ordinarily analyse the evidence adduced by the petitioner or cannot conduct an enquiry with regard to the reliability of the evidence in the alleged facts. Prima facie satisfaction of the case is sufficient. Apex Court in State of Haryana V. Bhajanlal
[1992 SCC (Crl) 426] pointed out that:
“where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”.
Therefore, the cognizance taken u/s.498A IPC against A2 to A8 is hereby quashed by invoking the inherent jurisdiction. This will not affect the case of 1st accused pending before that Court.
Crl.M.C. is disposed of with the above observation.
acd P.D. RAJAN, JUDGE.