Bommaraveni Kavitha vs Dr. Geetla Supraja Reddy
2022 Latest Caselaw 113 Tel

             HON'BLE SRI JUSTICE K. LAKSHMAN

               CRIMINAL PETITION No. 96 OF 2021
ORDER:

Heard the petitioner as party-in-person and learned Assistant

Public Prosecutor appearing on behalf of the respondent No.2 - State.

2. The present Criminal Petition is filed to quash the return

endorsement dated 30.11.2020 made in C.F. No.951 of 2020 by the

learned I Additional Judicial Magistrate of First Class, Godavarikhani.

3. Perusal of the record would reveal that the petitioner herein is

the de facto complainant. She has filed a complaint dated 26.08.2020

before the Godavarikhani I - Town Police Station, Peddapalli District

stating that she is an Advocate practicing at Munsif Court,

Godavarikhani, while Sanam Murali is also an Advocate and both of

them aquatinted with each other. Out of such acquaintance, accused

No.1 luring her that books for preparation of Groups are available in his

house took her to his house at Markendeya Colony two years prior to the

lodging of the said complaint. When she went to his house, none were

available in the house and taking advantage of the same, accused No.1

mixed some intoxicant substance with the Cool Drink and made her to

drink. Thereafter, he had assaulted her sexually and even taken her nude

pictures and videos and thereafter threatened her saying that she has to

meet him whenever he wants, failing which, he would upload such

pictures in social media. She further alleged that on 02.11.2019, when

her menstruation had stopped, she got suspicion and got examined

KL,J Crl.P. No.96 of 2021

through Medical Test, in which her pregnancy was confirmed. When the

said fact was brought to the notice of accused No.1 along with her family

members, accused No.1 demanded them to pay Rs.8.00 lakhs towards

dowry for marrying her. However, accused No.1 and his family

members asked her to undergo abortion and she was forcibly made to

undergo abortion by the accused at Sri Adithi Maternity General Nursing

Home, Godavarikhani by Dr. Sujatha Reddy, MBBS, DGN. Her father

also paid an amount of Rs.2,30,000/- to accused No.2 for getting Process

Server Job, but later he changed his word. In that connection, even he

attached her at her house.

4. Basing on the said complaint, the police of I-Town

Godavarikhani Police Station had registered a case in Crime No.312 of

2020 for the offences under Sections - 448, 427, 417, 420, 290, 324, 376,

376 (2)(n)(i), 313 and 506 read with 34 of IPC and Section - 4 of the

Dowry Prohibition Act, 1961 against accused Nos.1 to 5. Accused No.2

is brother, accused No.3 is mother, accused No.4 is sister-in-law and

accused No.5 is sister of accused No.1, and took up for investigation.

5. While so, the petitioner herein, de facto complainant, filed a

petition under Section - 319 of Cr.P.C. before the learned I Additional

Judicial Magistrate of First Class, Gadavarikhani, seeking to add Dr.

Geetla Supraja Reddy, the doctor, as accused No.6 in the aforesaid crime

on the ground that the said doctor in collusion and conspiracy with the

primary accused got aborted her and thereby she has committed an

offence under Section - 376 (2) (n) (i) of IPC. After filing the said

KL,J Crl.P. No.96 of 2021

petition, the learned Magistrate returned the same on 28.11.2020 with the

following objection:

"The petition u/s.319 Cr.P.C. is maintainable during inquiry or trial of a case. As per the petition itself the charge sheet is under scrutiny only. Hence this petition is not maintainable at this stage. Hence liable for return. Hence, returned. "

6. The petitioner has re-submitted the said petition on the same

day i.e., 28.11.2020 with the following reasons:

"Inquiry means it is a stage or a situation before the trial only.

Inquiry is defined by clause "g" of Section 2 of the Cr.P.C. It means every inquiry other than a trial conducted under this Code by a Magistrate or a Court."

So absolutely now we are in the stage of Inquiry. This learned Magistrate is on bound duty to take this criminal miscellaneous petition. Inquiry about the deletion of accused to doctor from the crime and to proceed against such accused. Hence resubmitted."

7. After re-submitting the said petition, the learned Magistrate

returned the said petition vide order dated 30.11.2020 with the following

order

"This petition is filed by the petitioner under section 319 of Cr.PC seeking to implead the Lady doctor by name Dr.Geetla Supraja Reddy W/o. Geetla Sandeep Reddy MBBS DGO in Sri. Aditi Maternity General hospital and Nursing Home, Godavarikhani as the accused No.6 for the offence under section 313 of IPC.

Perused the record.

Section 319 Cr.PC reads as follows:

319. Power to proceed against other persons appearing to be guilty of offence.

KL,J Crl.P. No.96 of 2021

(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 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 a fresh, 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 Hon'ble Supreme Court in Ranjith Singh v/s State of Punjab (1998) 7 SCC 149, at para No.9, held that "the word evidence envisaged in section 319 of Cr.PC means the evidence adduced during trial of the case if the offence is triable by a Court of Sessions. The material placed before the committal Court cannot be treated as evidence collected during enquiry or Trial" The Hon'ble Supreme Court in Sarojben Ashwinkumar shah v/s. Stat eof Gujarath (2011) 13 SCC 316 at para No.16 held that "the word evidence in section 319 Cr.PC contemplates the evidence of witnesses given in the Court during enquiry or trial. The Court cannot add persons as accused on the basis of material available in the Charge sheet or the case Diary but must be based on the evidence adduced before it".

Both the Judgments of Hon'ble Supreme Court clearly applicable to the present case in hand. The present case is only at the stage of checking of charge sheet filed for the offences triable by Hon'ble Court of Sessions and except the charge sheet there is no other "evidence" on record to proceed with the petition. In view of the above Judgments, this Court has no jurisdiction to entertain the present petition and liable to be returned. In the result, the petition is returned."

8. Challenging the said order, the petitioner filed the present

petition.

KL,J Crl.P. No.96 of 2021

9. In view of the above, it has to be seen whether the Magistrate

has power to add the aforesaid doctor as an accused while the charge

sheet under scrutiny. In the present case, it is no doubt true, the

Investigating Officer after completion of investigation in Crime NO.312

of 2020 laid charge sheet, but as per the endorsement made by the

learned Magistrate, the said charge sheet is under scrutiny and not yet

numbered. It is no doubt true, as per Section - 319 of Cr.P.C. if it

appears to the Court that there is evidence, may proceed against any

person not being the accused appears to have committed an offence in the

course of any inquiry into, or trial of. The word 'inquiry' is defined

under Section - 2(g) of Cr.P.C. referring to any inquiry other than trial

under the code, conducted by a Magistrate or a Court. A Trial in every

case initiates when inquiry ends. Section - 159 of Cr.P.C. explains an

order given by the magistrate or Court to make a preliminary inquiry in

order to see whether the offence has been committed and if so, who are

the people involved in the same.

10. Further, in sub-Section (1) of Section - 319 of Cr.P.C clearly

envisages that 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 word 'evidence' is

defined under Section - 3 of the Indian Evidence Act, 1872, and it means

and includes (1) all statements which the Court permits or requires to be

made before it by witnesses, in relation to matters of fact under inquiry;

KL,J Crl.P. No.96 of 2021

such statements are called oral evidence; (2) all documents including

electronic records produced for the inspection of the Court; such

documents are called documentary evidence.

11. In view of the above, coming to the case on hand, the charge

sheet yet to be numbered and the Magistrate has to take cognizance of the

offences alleged against the accused. Further, there is no power to the

trial Court to array any person as an accused in the absence of any

evidence let-in during inquiry or trial as contemplated by Section - 319 of

Cr.P.C. after crossing the stage under Section - 190 of Cr.P.C. The

erstwhile High Court of Andhra Pradesh at Hyderabad in R.C. Kumar v.

State of Andhra Pradesh1 has elaborately discussed the purport of

Section - 319 of Cr.P.C. and held that after letting evidence, it is for the

Magistrate to add an accused or not, considering the evidence available

on record. Learned Magistrate relying on the principle laid down in

Ranjith Singh v. State of Punjab2 and Sarojben Ashwinkumar Shah

v. State of Gujarat3, rightly returned the said petition filed by the

petitioner. There is no error in it.

12. In view of the above said discussion, the learned Magistrate

was right in returning C.F. No.951 of 2020 and there is no error in it and

therefore, the present petition is liable to be dismissed.

13. The present Criminal Petition is accordingly dismissed.

. 1991 Crl.L.J. 887

. (1998) 7 SCC 149

. (2011) 13 SCC 316

KL,J Crl.P. No.96 of 2021

As a sequel, miscellaneous petitions, if any, pending in the

criminal petition shall stand closed.

__________________ K. LAKSHMAN, J 17th January, 2022 Mgr