Smt. Madhu Vyas D/O Shri Gopal Krishan Vyas W/O Shri Nirmal Sharma Vs State of Rajasthan

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 378/2022

Smt. Madhu Vyas D/o Shri Gopal Krishan Vyas W/o Shri Nirmal Sharma, Aged About 37 Years, Resident of Tan Keshyawala, Police Station Muhana, Tehsil Sanganer, District Jaipur Rajasthan.

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----Petitioner

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Versus

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State of Rajasthan, through Public Prosecutor.

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Kailash Sharma S/o Late Shri Sitaram Sharma, Resident of Village Titariya, Tehsil Chaksu, Distt. Jaipur.

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Santosh Sharma W/o Shri Kailash Sharma, Resident of Village Titariya, Tehsil Chaksu, Distt. Jaipur.

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Devesh Nandoi S/o Shri Kishan Kumar Sharma, Resident of Jatwada Khurd Mantown, Sawaimadhopur.

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----Respondents

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Connected With

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S.B. Criminal Miscellaneous (Petition) No. 8362/2021

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Smt. Madhu Vyas D/o Shri Gopal Krishan Vyas W/o Shri Nirmal Sharma, Resident of Tan Keshyawala Tehsil Sanganer, District Jaipur Rajasthan.

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----Petitioner

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Versus

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State of Rajasthan, through Public Prosecutor. 2. Kailash Sharma S/o Late Shri Sitaram Sharma, Resident of Village Titariya, Tehsil Chaksu, Distt. Jaipur.

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Santosh Sharma W/o Shri Kailash Sharma, Resident of Village Titariya, Tehsil Chaksu, Distt. Jaipur.

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Devesh Nandoi S/o Shri Kishan Kumar Sharma, Resident of Jatwada Khurd Mantown, Sawaimadhopur.

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----Respondent

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For Petitioner(s) : Mr. Tanveer Ahamad For Respondent(s) : Mr. Vivek Choudhary, PP Mr. Rajat Ranjan

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HON'BLE MR. JUSTICE SUDESH BANSAL Order

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08/09/2025

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Petitioner is complainant and aggrieved by not considering her allegations against respondent No.2- Kailash Sharma, her

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father-in-law and respondent No. 4 Devesh Nandoi, for taking cognizance of offence thereagainst under Sections 354-A & 354-D, 376/511 IPC in connection with FIR No. 106/2019 registered at Police Station Mahila Thana, Jaipur City (South) for offences under Sections 498-A, 406, 323, 341, 354-A, 354-D, 376 and 511 of IPC.

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At the outset, the relevant facts in brief, as culled out from the record are that, through the criminal complaint filed by the petitioner, FIR No. 106/2019 came to be registered at Police Station Mahila Thana, Jaipur City (South) for offences under Sections 498-A, 406, 323, 341, 354-A, 354-D, 376 and 511 of IPC wherein after investigation, Police submitted charge-sheet against petitioner’s husband namely Nirmal Sharma for offence under Sections 498-A and 406 IPC and absolved petitioner’s father-inlaw Kailash Sharma, Mother-in-law Smt. Santosh Sharma and Nandoi Devesh, from the allegations of harassment for dowry, sexual harassment and abuse. On filing the charge-sheet, the Additional Civil Judge and Metropolitan Magistrate No. 12, Jaipur Metropolitan, took cognizance for offences under Sections 498A and 406 against petitioner’s husband Nirmal Sharma vide order dated 31.10.2019. Since no charge-sheet was filed against other accused persons namely Kailash Sharma, Smt. Santosh Sharma and Devesh, petitioner filed an application under Section 190 of Cr.P.C. to take cognizance of offence under Section 376-B, 511, 354-A and 354-D IPC, which was dismissed vide order dated 15.02.2020. Thereagainst, petitioner filed a Criminal Revision Petition, which too has been dismissed vide order dated

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23.09.2021 by the Court of Additional Sessions Judge No. 9, Jaipur Metropolitan-I.

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In Criminal Misc. Petition No. 378/2022, petitioner has questioned the order of cognizance dated 31.10.2019 to the extent that in the FIR as well as in her statements, recorded under Section 164 Cr.P.C., material was available before the Judicial Magistrate to take cognizance for offence under Sections 376-B, 511, 354-A and 354-D IPC as well against the accused persons Kailash Sharma, Smt. Santosh Sharma and Devesh, but cognizance was not taken. Hence, a prayer has been made to take cognizance of such offence against above accused persons as well.

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It is noteworthy that after passing of the order of cognizance dated 31.10.2019, petitioner’s husband Nirmal Sharma has passed away on 18.06.2020, hence, criminal proceedings pursuant to FIR No. 106/2019 against petitioner’s husband Nirmal Sharma has been declared abated. Now, the issue survives only in respect of taking cognizance or not, for offences under Sections 376-B, 511, 354-A and 354-D IPC, against other accused persons viz. Kailash Sharma, Smt. Santosh Sharma and Devesh.

¶36

In S.B. Ciminal Misc. Petition No. 8362/2021, petitionercomplainant has impugned the order dated 15.02.2020 passed by the Additional Civil Judge and Metropolitan Magistrate No. 12, Jaipur Metropolitan, declining to take cognizance of offences under Sections 376-B, 511, 354-A and 354-D IPC against accused Kailash Sharma, Smt. Santosh Sharma and Devesh Nandoi so also order dated 23.09.2021 passed by the Revisional Court i.e. Additional Sessions Judge No. 9, Jaipur Metropolitan-I, dismissing the Revision Petition thereagainst.

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During course of arguments, counsel for petitioner, having instructions from petitioner, does not press the prayer for considering the case to take cognizance or not, against accused Smt. Santosh Sharma and has pressed the issue only against accused persons Kailash Sharma and Devesh Nandoi.

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Heard counsel for complainant, counsel for accused respondent Kailash Sharma and Devesh Nandoi, learned Public Prosecutor and perused the material available on record. 6. From bare perusal of the order dated 15.02.2020 so also the order dated 23.09.2021, it appears that the allegations of complainant, made in the FIR and her statements recorded under Section 164 Cr.P.C., were not considered on merits by the Judicial Magistrate on the issue to take cognizance or not, against the accused persons namely Kailash Sharma and Devesh Nandoi, but the cognizance was declined against these persons under the impression that cognizance of offence under Section 498A, 406 IPC has been taken against petitioner’s husband Nirmal Sharma and cognizance for offence can be taken only once.

¶42

The legal position is no more res integra that Court takes the cognizance of offence and not of the offender, but once cognizance of offence is taken, it becomes the Court’s duty to find out who the offenders really are and if, from the material available in the Police Investigation Report, Court finds that apart from the persons charge-sheeted by the Police, some other persons too are involved, it is the duty of Court to proceed against those non charge-sheeted persons as well and to summon them. Summoning of the additional accused persons is in continuation of the criminal proceedings, instituted by taking cognizance of

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offence by the Court. Simultaneously, it is also well settled that in the criminal cases filed before the Judicial Magistrate, on Police Report, Judicial Magistrate has jurisdiction to disagree with the opinion of Investigating Officer and may take cognizance of other offences as well which according to the Investigating Officer have not made out.

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It would be apposite to refer that the scope of jurisdiction of the Judicial Magistrate, in taking cognizance of an offence, was examined by the Supreme Court in case of Raghubans Dubey Vs. State of Bihar [AIR 1967 SC 1167] and it was observed by the Hon’ble Supreme Court as under:-

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“8....In our opinion, once cognizance has been

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taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional Accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in Pravin Chandra Mody v. State of Andhra Pradesh [MANU/SC/0082/1964: (1965) 1 SCR 269] the term "complaint" would include allegations made against persons unknown. If a Magistrate takes cognizance Under Section 190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, Under Section 190(1)(b).”

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(emphasis supplied)

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In the case at hand, from perusal of the Investigation Report of Police, it appears that there is clear observation of police that offences under Sections 376-B, 511, 354-A and 354-D IPC are not made out against the persons Kailash Sharma and Devesh Nandoi,

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since they never visited the place of residence of complainant, where she was living post to her marriage with her husband. However, it is noteworthy that after submission of Police Investigation Report, the Judicial Magistrate did not advert to the material available in the Police Report, to take cognizance for such offences against accused persons or not, and took cognizance of offences under Sections 498A & 406 IPC only against Nirmal Sharma, against whom Police filed charge-sheet.

¶56

It appears that when cognizance for offences under Sections 498A and 406 IPC against petitioner’s husband Nirmal Sharma was taken in furtherance to filing of charge-sheet by police, thereafter, complainant filed an application under Section 190 of Cr.P.C. drawing attention of the Judicial Magistrate to take cognizance for offences under Sections 376 B, 511, 354 A and 354 D IPC against accused persons viz. Kailash Sharma, Smt. Santosh Sharma and Devesh Nandoi, but that application came to be dismissed by the Judicial Magistrate in slipshod manner vide order impugned dated 15.02.2020, without considering the material available in Police Investigation Report on merits, for taking cognizance or not against these accused persons. The Revisional Court too failed to ponder over this issue and rejected the Revisional Petition vide order dated 23.09.2021. 11. The legal position is well settled in this regard. The Hon’ble Supreme Court in case of SWIL Limited Vs. State of Delhi & Anr. [(2001) 6 SCC 670] , held and observed that there is no bar under Section 190 Cr.P.C. that once the process is issued against some accused persons, on the next date, the Magistrate cannot issue process to some other persons against whom there is

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some material on record, but name of such person was not included as accused in the charge-sheet submitted by Police. 12. The legal issue has further been set at rest by a Constitutional Bench of the Supreme Court in case of Dharam Pal & Ors. Vs. State of Haryana & Anr. [(2014) 3 SCC 306] wherein the Hon’ble Supreme Court opined in para No. 35 and 36 as under:-

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“35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him Under Section 173(2) Code of Criminal Procedure. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the Accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.

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This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons Accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court.”

¶63

(emphasis supplied)

¶64

The view of Hon’ble Supreme Court has further been reiterated and followed in case of Hardeep Singh Vs. State of Punjab & Ors. [(2014) 3 SCC 92] and recently in case of Nahar Singh Vs. State of Uttar Pradesh & Ors. [(2022) 5 SCC 295] .

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In view of above referred legal position, it is explicit that the Judicial Magistrate ought to have considered the application of

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petitioner-complainant in respect of taking cognizance or not, for offences under Sections 376-B, 511, 354-A and 354-D IPC against accused persons viz. Kailash Sharma and Devesh Nandoi on merits by considering the material available in the Police Investigation Report. The Judicial Magistrate erred in dismissing the application of petitioner-complainant, merely, on the ground that the cognizance of offences under Sections 498A, 406 against accused Nirmal Sharma has already been take. Such an approach is nothing but less on a technical ground and such reasoning cannot be termed as a legal or justified ground to dismiss the application of petitioner-complainant. On this count, the order impugned dated 15.02.2020 suffers from manifest illegality and jurisdictional error which has not been rectified by Revisional Court as well, hence, the order impugned so also the order of Revisional Court dated 23.09.2021 are not liable to be countenanced and both orders are liable to be quashed.

¶70

At this juncture, it is noteworthy that counsel appearing on behalf of accused-respondent Kailash Sharma and Devesh Nandoi, pointed out that at the time of submission of charge-sheet by Police against accused Nirmal Sharma only and not against Kailash Sharma, Smt. Santosh Sharma and Devesh Nandoi, complainant herself was present in person before the Judicial Magistrate and on the basis of that charge-sheet, cognizance was taken by the Judicial Magistrate on 31.10.2019, but till the date of taking cognizance by the Magistrate for offences under Sections 498A and 406 IPC against accused Nirmal Sharma vide order dated 31.10.2019, no protest petition was filed by the complainant and later on, application under Section 190 Cr.P.C. was filed by

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complainant on 15.02.2020, which cannot be entertained on merits.

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In counter to such arguments, counsel for complainant submits that final negative report, submitted by Police against accused persons Kailash Sharma, Smt. Santosh Sharma and Devesh Nandoi was never accepted by the Judicial Magistrate and moreover, it was incumbent upon the Court to issue a notice or give information to the complainant in respect of not filing chargesheet by the Police against accused- Kailash Sharma, Smt. Santosh Sharma and Devesh Nandoi but no notice of submission of Final Report to the petitioner-complainant was issued. Hence, for entertaining the application, filed by the petitioner-complainant under Section 190 Cr.P.C. at later stage on merits, there is no bar and the issue of taking cognizance for other offences against other accused persons, against whom police submitted negative final report, can be considered in law. Reliance has been placed by the counsel for complainant on the judgment passed in case of Bhagwant Singh Vs. Commissioner of Police and Anr. [(1985) 2 SCC 537] .

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This Court finds from the record that it is true that the final report of not filing the charge-sheet against Kailash Sharma, Smt. Santosh Sharma and Devesh Nandoi was never accepted by the Judicial Magistrate and Judicial Magistrate never adverted to this aspect nor any notice by the Court was issued to the petitionercomplainant, giving information of filing negative charge-sheet against these persons. Mere presence of complainant or her Advocate, to receive the copy of charge-sheet, filed against accused Nirmal Sharma, does not dispense with the legal

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requirement to inform the complainant, by the Court about filing of negative final report, against other persons against whom complainant levelled allegations in the FIR. This view finds support by the Judgment of the Hon’ble Supreme Court in case of Bhagwant Singh (supra) , however, this Court is not entering to discuss this issue extensively in detail for the reason that in view of case law discussed and referred in foregoing paragraphs, where the Judicial Magistrate ought to have considered the application under Section 190 Cr.P.C. filed by the complainant on merits, which was indeed not considered on merits but was dismissed on technical ground only, the matter needs to be remanded to the Judicial Magistrate to consider the case of complainant on merits against accused respondent Kailash Sharma and Devesh Nandoi as to whether cognizance is required to be taken or not?

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As far as order of cognizance dated 31.10.2019 for offence under Section 498-A and 406 IPC is concerned, same was passed against petitioner’s husband Nirmal Sharma, who undeniably has died on 18.06.2020 (Annexure-R3- Death Certificate), hence criminal proceedings qua petitioner’s husband accused Nirmal Sharma, has already been abated, hence, in that view, it is suffice to observe herein that this order of cognizance will not affect the jurisdiction of Judicial Magistrate to consider the case afresh on merits for taking cognizance or not, against the accused persons viz. Kailash Sharma and Devesh Nandoi, after appreciating the material available in the Police report against them on merits. 17. It is hereby also observed that in the given facts and circumstances of the present case, Judicial Magistrate shall accord opportunity of hearing to the accused respondents viz. Kailash

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Sharma and Devesh Nandoi, at the time of considering the issue for taking cognizance or not, in the alleged offence against these accused persons. It is made clear that notice is not required to be issued either to petitioner-complainant or to accused-respondents since both parties are represented through their counsel and counsel for both parties undertake before this Court to put in appearance before the Judicial Magistrate on 06.10.2025 to proceed further in the present matter.

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As a final result, the impugned order dated 15.02.2020 passed by the Additional Civil Judge and Metropolitan Magistrate No.12, Jaipur Metropolitan and the order dated 23.09.2021 passed by the Additional Sessions Judge No. 9, Jaipur Metropolitan I are hereby quashed and set aside. Application dated 15.02.2020, filed by the petitioner-complainant, is restored to its original number and directed to be decided afresh on merits by the Judicial Magistrate to consider the matter of taking cognizance or not of offences under Sections 376-B, 511, 354-A and 354-D IPC against accused persons Kailash Sharma and Devesh Nandoi on merits, as per material available in the Police Investigation Report.

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The exercise be done expeditiously and preferably within a period of four months from the date of appearance. 20. Since counsel for petitioner-complainant has not pressed the prayer to consider the case and to proceed against respondent No. 3 Smt. Santosh Sharma; Police has already submitted negative final report against her, hence, qua Smt. Santosh Sharma, final report is deemed to be accepted.

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As has been noted hereinabove, the fact is taken on record that due to death of accused Nirmal Sharma, the Criminal

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proceedings against him in furtherance to cognizance order dated 31.10.2019 has already been abated.

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Resultantly, the Criminal Misc. Petition No. 8362/2021 stands allowed and in view of directions issued in Criminal Misc. Petition No. 8362/2021 to remand the matter to Judicial Magistrate to consider on merits afresh, counsel for petitioner-complainant does not press the S.B. Criminal Misc. Petition No. 378/2022, hence, same is hereby dismissed as withdrawn.

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All pending application(s), if any, also stand(s) disposed of. 23. A copy of this order be sent to the concerned Judicial Magistrate for compliance.

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(SUDESH BANSAL),J

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NITIN /172-173

Smt. Madhu Vyas D/O Shri Gopal Krishan Vyas W/O Shri Nirmal Sharma v. State of Rajasthan

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Smt. Madhu Vyas D/O Shri Gopal Krishan Vyas W/O Shri Nirmal Sharma v. State of Rajasthan

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