@JUDGMENTTAG-ORDER
B.S. Patil, J.@mdashThe State has filed this Revision Petition challenging the order dated 29th November, 2005 passed by the XXV Additional City Civil and Sessions Judge, Bangalore, rejecting the application filed by the prosecution u/s 319 Code of Criminal Procedure praying the Court below to take cognizance and to proceed against accused Nos. 2 and 3 for the offences punishable u/s 498-A I.P.C. and for the offence under Sections 3, 4 and 6 of the Dowry Prohibition Act. As regards Accused No. 4 the offence alleged is u/s 498-A I.P.C.
2. The prosecution contends that the complainant Smt. Manjubhashini, examined as PW-6, and her father and elder brother examined as P Ws.7 and 8 respectively, have in the course of their evidence before the Court deposed that prior to the marriage, accused Nos. 2 and 3 came to the place of the complainant and demanded dowry in the form of gold ornaments, cash and household articles. That, even after the marriage, accused Nos. 2 and 3 used to visit the house of the complainant who was living with accused No. 1 separately and were treating her with physical and mental cruelty by demanding dowry and by threatening her that if she failed to bring the dowry, they would perform the marriage of accused No. 1 with accused No. 4. That, accused No. 4-Veena who had property worth rupees twenty-five lakhs has married accused No. 1. Thus, on the basis of this evidence, the prosecution approached the Court below with the application u/s 319 Code of Criminal Procedure requesting to proceed against accused Nos. 2 to 4 also. It is important to note here that accused No. 2 to 4 had been discharged earlier.
3. Accused No. 1 is the husband of the complainant. Accused No. 2 is the sister of accused No. and accused No. 3 is the husband of accused No. 2. Accused No. 4 is alleged to have been taken as the second wife by accused No. 1. Charge-sheet was filed by the police upon investigation against all these accused.
4. On an application filed by the accused seeking to discharge them, the Court below, by order dated 18-9-2003, discharged accused Nos. 2 to 4 of the offences alleged against them. As against this order, Criminal Revision Petition No. 385/2004 was filed by the complainant-PW-6. This Court by order dated 21-6-2004 rejected the Revision Petition holding that the material evidence collected during investigation indicated that accused Nos. 2 to 4 were staying separately and that in the absence of any clear allegation against them in the complaint and in the evidence of the witnesses recorded during investigation, it could not be definitely said that they had played any role in the alleged serious offences. This order discharging accused Nos. 2 to 4 has been affirmed by this Court and the same has attained finality. Thereafter, when P Ws. 6, 7 and 8 in the course of their evidence made allegations against accused Nos. 2 to 4 stating that they had some role to play in the demand of dowry and in the harassment meted out to the complainant, the prosecution has chosen to file the application u/s 319 Code of Criminal Procedure to take cognizance against accused Nos. 2 to 4 and to proceed against them.
5. The application filed by the prosecution has been resisted by accused Nos. 2 to 4 on the ground that the same was not maintainable as they were earlier discharged by an order passed by the trial Court which has been confirmed by this Court in revision. That, the evidence of P Ws. 6 to 8, on the basis of which the prosecution intends to take action against accused Nos. 2 to 4, was not new one, as it was based on the written complaint given by PW-6 and the statements made by P Ws. 6 to 8 which were before the police at the time of discharge of accused Nos. 2 to 4 and that there was no new or fresh material brought out against these accused to initiate action u/s 319 Code of Criminal Procedure
6. The learned High Court Government Pleader submits that in view of the new material brought forward in the evidence of P Ws. 6 to 8, the Court below was in error in not proceeding against accused Nos. 2 to 4. He submits that the application u/s 319 Code of Criminal Procedure is maintainable even in such cases, despite the fact that the persons who are sought to be proceeded were earlier implicated as accused and were ordered to be discharged.
7. Upon hearing the learned Counsel for the parties, the point that arises for consideration is:
Whether accused Nos. 2 to 4 who were discharged earlier can be proceeded again, adding them as accused by way of an application filed u/s 319?
8. It is necessary to refer to Section 319, which is an 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 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 as 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 the 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.
The provisions of Section 319 Code of Criminal Procedure if construed carefully show that they enable the prosecution to proceed against ''any person not being the accused'' who appear to be guilty of the offence in the course of any inquiry or trial. The expression ''any person'' is preceded and qualified by the expression ''not being the accused''. The question, whether persons already arrayed as accused and against whom charge-sheet was filed and were later ordered to be discharged on account of absence of evidence pointing at their guilt could also be proceeded against is a matter that falls for consideration. It may be that, once they are discharged they are no longer accused in the case, in respect of which, the trial is conducted. But as they were accused in the case earlier, the larger issue is, whether they can again be subjected to undergo the trial by resorting to an application u/s 319 Code of Criminal Procedure This controversy is to a great extent answered in the decision rendered by the Apex Court in the case of
... what would be the effect of the order of discharge? Should the protection resulting from such an order of discharge be allowed to be taken away by allowing the same Magistrate to take cognizance of the offence or offences against them at a later stage of the trial, without further enquiry where the order of discharge was not challenged or even if the order of discharge was taken in revision and the same was affirmed by the revisional Court? Section 397 empowers the High Court or any Sessions Judge to call for examining the records of any proceedings before any inferior Criminal Court within its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed etc. Section 398 empowers the High Court or the Session Judge to order inquiry. It says:
On examining any record u/s 397 or otherwise, the High Court or the Session Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed u/s 203 or Sub-section (4) of Section 204, or into the case of any person accused of an offence who has been discharged.
Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.
9. While holding that the provisions contained u/s 398 empowers the Courts to direct further inquiry into any complaint which has been dismissed u/s 203 or Sub-section (4) of Section 204 or in the case of any person accused of the offence who has been discharged after affording an opportunity to show cause, the question whether the requirement of Section 398 could be obviated or circumvented by taking resort to Section 319 is also answered by the Apex Court in the negative holding that once a person was an accused in the case, he would be out of the reach of Section 319. The Apex Court has held that the provisions of Section 319 have to be read in consonance with the provisions of Section 398 of the Code.
10. Therefore, once a person is an accused in the case and has been discharged, he goes out of the reach of Section 319. In other words, after discharge, the very same accused cannot be sought to be proceeded again by resorting to the provisions of Section 319. Whether such a person can be dealt with under any other provisions of the Code, is a different question. But, as far as the present application filed u/s 319 is concerned, the accused Nos. 2 to 4 cannot be proceeded against, as they were the accused against whom charge-sheet was filed and were later discharged which order of discharge has attained finality, being affirmed by this Court in the Revision Petition.
11. On account of the discharge of accused Nos. 2 to 4 by the Court below, as per the provisions of he Code and the said order having attained finality, there is a protection afforded to the persons charged, subject however to the provisions u/s 398 of the Code. Only because the complainant desires subsequently for various purposes, including at times to wreck vengeance and makes as statement implicating the accused who have been discharged, proceedings cannot be initiated against them u/s 319. This principle is clearly stated in the decision of the Apex Court referred to supra.
Therefore, the order passed by the Court below rejecting the application filed u/s 319 Code of Criminal Procedure does not in any manner suffer from any illegality so as to warrant interference by this Court. Hence, this petition being devoid of merits is dismissed.
