Smt. Madhu vs State of Uttarakand and Another

Sudhanshu Dhulia, J.—Heard Mr. M.C. Kandpal, Senior Advocate assisted by Mr. I.P. Kohli, Advocate for the applicant, Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent No. 1 and Mr. Pankaj Miglani, Advocate for respondent No. 2.

This application u/s 482 read with Section 483 of Cr.P.C. has been filed by the applicant against the order of the Sessions Judge, Hardiwar dated 2.7.2010 passed in Criminal Revision No. 313 of 2010 Smt. Madhu and Ors. v. State and order dated 1.6.2010 passed by the Chief Judicial Magistrate, Haridwar in Criminal Case No. 5042 of 2007 State v. Anil Kumar Bidani, whereby the application moved by the revisionist/applicant u/s 319 of Cr.P.C. has been rejected.

Section 319 of Cr.P.C. reads as under:

Power to proceed against other persons appearing to be guilty of offence.--(1) where, in the course of any injury 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.

(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 under Sub-section (1) 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 of trial was commenced.

At this juncture, it is necessary to state that the application u/s 319 of Cr.P.C. was moved on behalf of the accused at a stage when examination of evidence was at its final stages. The application was moved by the accused u/s 319 Cr.P.C. stating that P.W.1 Smt. Payal Bidani and P.W.2 Sri Kedarnath having deposed before the Court in their statement that they have given dowry to the accused persons and since giving of dowry is also a crime as much as taking of dowry is, the Court must proceed against Mr. Kedarnath Batla and Smt. Seema Batla u/s 3 of the Dowry Prohibition Act, 1961.

First of all, dowry has been defined u/s 2 of the Dowry Prohibition Act, 1961, which reads as under:

Definition of ''dowry''.--In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before [or any time after the marriage] [in connection with the marriage of the said parties, but doe not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II. - The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

What has been stated by these witnesses prima facie is strictly speaking not an admission of giving dowry, nor can it be construed as a dowry. Moreover, moving of such an application u/s 319 of Cr.P.C. at such a belated stage will only dilate the proceedings.

The powers of the Court u/s 319 of Cr.P.C. are very well defined. The Court indeed has powers to proceed against persons at any stage, but these powers have to be sparingly used and definitely not at a stage, where it is presently being invoked, otherwise it will frustrate the ends of justice rather than insuring speedy and effective trial. Therefore, the application u/s 319 of Cr.P.C. has rightly been rejected by the learned Chief Judicial Magistrate, Haridwar. Although the learned Sessions Judge has also been right in rejecting the Criminal Revision, but the grounds assigned by the Sessions Judge may not be proper as in the opinion of the learned Sessions Judge, an application u/s 319 of Cr.P.C. cannot be invoked by any accused. This may not be the correct position.

Be that as it may, the fact that the application was rightly rejected by the Chief Judicial Magistrate cannot be disputed. There is no force in the present C-482 Petition and the same is liable to be dismissed and is hereby dismissed. No order as to costs.

The Registry is directed to send a copy of this order to the Court concerned for necessary compliance.