A. Balasubramaniam vs State

M. Karpagavinayagam, J.—A. Balasubramaniam, the petitioner herein is the first accused in C.C. No. 7053 of 1996 on the file of the Court of IX Metropolitan Magistrate, Chennai.

The petitioner alongwith four others were charge-sheeted by the respondent-Police for the offences under Sections 498(A) and 406, IPC and Sections 3(1), 4(1) and 6(1) of the Dowry Prohibition Act. On service of summons on the petitioner (Al), he filed a petition in Crl.M.P. No. 929 of 1997 u/s 319, Cr.P.C. to implead one Krishna Raj, witness No. 2, the father-in-law of the petitioner stating that since the statements u/s 161, Cr.P.C. made by the wife, witness No. 1 and the father-in-law Krishna Raj, witness No. 2 would reveal that the said Krishna Raj gave 50 sovereigns of jewels as dowry t6 A1 to A3 on the date of marriage, the witness No. 2 also has to be arrayed as an accused u/s 3(1) of the Dowry Prohibition Act by which giving of the dowry is an offence.

On hearing the Counsel for the parties, the Trial Court dismissed the said petition holding that there is no merit in the said prayer. As against this order, the petitioner has filed the revision before this Court.

Mr. Arumugam, the Counsel for the petitioner would contend that the impugned order would suffer from infirmity, since the reasonings contained in the said order are not legally sound and that when the witness-No. 2 himself gave a statement to the police admitting that he gave dowry of 50 sovereigns of jewels on the date of marriage to the petitioner and others, he also ought to have been directed to face the prosecution in respect of the offence u/s 3(1) of the Dowry Prohibition Act.

On the other hand, the learned Government Advocate, in support of the impugned order, would point out that as per Section 7(3) of the Dowry Prohibition Act, there cannot be any prosecution as against the person aggrieved by the offence on the basis of his own statement. He would further point out that at any rate, Section 319, Cr.P.C. would not come into play at the present stage, as the trial has not commenced and the evidence let in.

I have given my anxious consideration to the submissions made on either side.

At the outset, I shall mention that Section 319, Cr.P.C. contemplates the power of the Trial Court to proceed against other persons appearing to be guilty of offence. Section 319(1) provides thus :

"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 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."

The reading of the provision would make it clear that if the Court finds that there are materials against any other person who is not arrayed as accused, which would make the Court to feel that the said person appearing to be guilty of the offence, then the Court may exercise the powers to proceed against such person as well. But, it is mentioned in the section mat the Court could come to such conclusion only from the evidence adduced before the Court.

Section 3 of the Evidence Act, while defining the word ''evidence'', would provide that the statements made before the Court by the witnesses and documents produced for the inspection of the Court are called oral evidence and documentary evidence respectively.

Admittedly, in the instant case, the evidence has not been adduced before the Trial Court. ''Evidence'' means, the evidence recorded during the course of enquiry or trial by the Court and not the statements at the stage of investigation recorded by the police. In other words, unless there is evidence recorded by the Court, Section 319, Cr.P.C. cannot be invoked.

The above settled law has been laid down in Mahant Amar Nath Vs. State of Haryana and Another, . Following this decision, I had also an occasion to deal with Section 319, Cr.P.C. and I held that Section 319 can be invoked only during the Course of trial, only on the basis of the evidence let in before the Court as against any other person other than the accused persons in the Court. So, on this ground, the present petition is liable to be dismissed, as there is no power for the Trial Court u/s 319, Cr.P.C. to include the witness No. 2 as one of the accused.

Since the learned Counsel for the petitioner would argue at length that the statements made by the witness No. 2 and witness No. 1 recorded by the police could be taken into consideration for issuing summons to the witness No. 2 as accused, on the strength of the decision of the Apex Court rendered in Hareram Satpathy Vs. Tikaram Agarwala and Others, , even u/s 190, Cr.P.C, though not u/s 319, Cr.P.C, I am constrained to deal with the question, whether any material available as against the witness No. 2 for the purpose of invoking Section 190, Cr.P.C. to issue process, though his name Was not mentioned in the police report.

The relevant portion of the observation of the Apex Court in Hareram Satpathy Vs. Tikaram Agarwala and Others, is this :

"Where the Magistrate after taking cognizance of the offence and perusal of the record and having been satisfied that there were prima facie grounds for issuing process against certain persons not mentioned in the police report, issued process against them, the Magistrate could not be said to have exceeded the power vested in him under law."

The view of the Apex Court about the power of the Magistrate to issue summons while taking cognizance u/s 190, Cr.P.C. to some other person as an accused though he was not mentioned in the police report on the strength of the materials available, is perfectly correct and there is no dispute with reference to the said legal position.

In the instant case, as I observed earlier, the petitioner has filed this revision challenging the order passed by the Trial Court dismissing the application filed u/s 319, Cr.P.C Though the Trial Court has not rejected the said application on the ground that Section 319, Cr.P.C. would not be applicable at this stage, dismissed the application on some other ground. Though I am not convinced with the reasonings given by the Trial Court for rejecting the prayer, I am of the view that the conclusion to hold that there is no merit in the petition is correct for the other reasons mentioned below.

The accusation made by the wife and the father-in-law, the witness Nos. 1 and 2 that the wife was tortured by the petitioner and his parents and relatives on demanding dowry. They were also accused of having misappropriated the Streedhanam articles entrusted to them at the time of marriage. So, the main transaction which is the subject-matter of the prosecution is demand of dowry and consequent torture and misappropriation of articles subsequent to the marriage.

It is the contention of the Counsel for the petitioner that since the father-in-law, witness No. 2 gave the dowry at the time of marriage, he also must be made as an accused.

No doubt, it is true that Section 3 of the Dowry Prohibition Act provides penalty for giving or taking dowry. On perusal of the records, it is true that witness Nos. 1 and 2 stated that they gave 50 sovereigns of jewels and other articles at the time of marriage. u/s 3(2) of the Act, exemption has been given to the presents which are given at the time of marriage to the bridegroom, when those presents are entered in a list maintained. Therefore, the Seervarisai articles and the jewels which are given and presented at the time of marriage to the bridegroom cannot be said to be dowry in the facts and circumstances of the case.

Moreover, Section 7(3) of the Act would provide thus :

"Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act."

In the light of the legal situation, I am not able to find that there are materials as against the witness No. 2 for the offence u/s 3(1) of the Act. As I stated earlier, the giving or taking the said presents or Seervarisai were made only at the time of marriage which relate to the different transaction from that of the other transaction by which the victim in this case was tortured on demanding the dowry.

On this ground also, the contention of the Counsel for the petitioner that there are materials as against the witness No. 2 to face the prosecution in the instant proceedings would fail.

In view of the foregoing discussion, the revision has no merit and the same is dismissed. Consequently, Crl.M.P. No. 4636 of 1997 stands closed.