K. Prema S. Rao Vs. Yadla Srinivasa Rao AIR 2003 SC 11

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BRIEF FACTS OF THE CASE

The deceased Krishna Kumari second daughter of PW1 was married to Yadla Srinivasa Rao (hereinafter referred to as accused No.1), on 26.6.1998. Accused No. l was employed as Branch Post Master in the village where the spouses lived jointly with the parents of accused No.1. At the time of marriage father of the deceased, who was a teacher, gave a cash dowry of Rupees fifteen thousand and jewels worth fifteen thousand besides gift of five acres of land and a house site in the course of marriage ritual described as “Pasupukumkuma”. It is explained that this gift of land was in the nature of ‘Stridhana’ given to the bride by the father for her maintenance. After three or four months of the marriage accused No.1, husband of the deceased started demanding in from the deceased execution of a deed in his favour of the land and house site gifted to her. Refusal on the part of the deceased to meet the demand was the cause of her continuous harassment. Taking advantage of his position as the Postmaster in the village, accused No.1 never delivered mail sent to the deceased by her father and her sister Nagamani. Her younger sister, after passing the tenth class examination, had to appear for the Polytechnic Entrance Test. As a part of harassment of the deceased, accused No.1 did not deliver the Entrance Card received from Kakatiya University addressed to the younger sister of the deceased which resulted in the former losing the admission to the test. The deceased somehow was able to lay her hands on the letters addressed to her and which had been concealed by accused No. 1. On finding those letters, she handed over the same to her father. This incident led to extreme points of harassment. Accused No. l and his parents, accused Nos. 2-3, drove the deceased out from their house with stern warning to her to restore those letters. This incident of cruelty was so grave and unbearable that she committed suicide by consuming a poisonous insecticide Endo- Sulphan on 22.10.1989. PW4, who had witnessed the incident of the deceased having been driven out of the house the previous day, also saw accused No.1 taking the deceased to the hospital at Madhira. PW4 informed about it to father (PW1) of the deceased who rushed to the house of the accused to find Krishna Kumari dead. The father then lodged a First Information Report, Ex. P1 within eight hours on the same day.

ISSUES INVOLVED IN THE CASE

whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such a person had caused the dowry death.
whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative or her husband.
whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative or her husband.

ARGUMENTS OF THE PARTIES

Plaintiff

In support of the first issue the learned counsel submitted that the failure on the part of the learned CMM to exercise his jurisdiction to order a joint trial is prejudicial to the interest of the petitioners, in as much as, even though the petitioners may be charged separately, they will be tried once, which apart from the convenience and saving in time and expense would prevent disclosure of their defence in the event one trial is ordered as against the situation obtaining presently, whereby they are required to go through seven separate trials. In support of this submission the learned counsel relied upon the provisions of Section 219 and Section 220 of the Cr.P.C. Special emphasis was laid on illustration „d‟ of Section 220.

5.3 The learned counsel further contended that if joint trial is not ordered the petitioners run the risk of being sentenced consecutively as against being subject to concurrent sentences. In support of his submission reliance was placed on sub-section (5) of Section 220 read with Section 71 of the Indian Penal Code, 1860 (in short the „IPC‟) and Section 31 of the Cr.P.C. To make good his submission the following judgments were cited before me.

As regards the third issue which pertains to imposition of cost the learned counsel for the petitioners submitted that his non- appearance on 3.10.2008 before the Court below, when the impugned order came to be passed, was occasioned on account of the fact that on that very date and time he was appearing in a matter listed in this Court. His explanation for not being able to appear even in the post-lunch session was that the matter listed in this Court went on for a substantial part of the day and, since the Court after hearing arguments proceeded to dictate the judgment in court, it became impossible for him to physically appear before the learned CMM on the said date. He thus submits that his absence at the hearing was not deliberate. In any event the learned counsel contends that the order imposing cost will have to be set aside, since the Cr. P.C. does not confer any power on the Magistrate to impose cost.

Defendant

As against this Mr Kalra, learned counsel appearing for the respondent No. 2 relied upon the impugned order to demonstrate that both the petitioners and his counsel had adopted dilatory tactics only to delay the culmination of the proceedings instituted in the Court below. He laid stress on the fact that the case has been pending disposal for six years and the cross-examination of the complainant/witness has not taken place despite service of notice on the accused, more than two years ago. He submitted that the record of the Court below would show a consistent pattern of absence of both the counsel and the accused. 6.1 As regards issue of joint trial Mr Kalra relied upon the view expressed by the Court below that since the complainant is prosecuting the case, the provisions for a joint trial in the Cr.P.C. should enure to its benefit. Since the complainant in this case has not sought a joint trial, no right is vested in the petitioners/accused to insist on a joint trial as a matter of right. Mr Kalra made it a point to stress that the application is woefully belated and hence has been rightly rejected by the Court below. 6.2 As regards the submission with respect to the examination on oath of the authorized representative of the complainant, who had filed his evidence by way of an affidavit, Mr Kalra relied once again on the reasoning given in the impugned order as also the judgment of the Single Judge of this Court in the case of Radhe Shyam Garg vs Naresh Kumar Gupta dated 09.05.2008 passed in Crl.MC 1522/2008; which has been affirmed by the Supreme Court vide its judgment dated 05.05.2009 in Criminal Appeal No.912/2009.

6.3 On the issue of costs the learned counsel for the respondent No.2 submitted that in view of the conduct of the petitioners the direction to pay cost as contained in the impugned order deserves to be sustained.

LEGAL ASPECTS INVOLVED

section 220, criminal procedure code

section 145(2)

section 220 of cr.p.c.

JUDGEMENT IN BRIEF

The matter, however, does not end here for the reason that the learned counsel has submitted that there is no provision empowering imposition of costs by the Magistrate. On this account Mr Vijay Aggarwal, learned counsel for the petitioners is right that there is no provision in the Cr.P.C. for imposition of costs. The impugned order is set aside to that limited extent. This, however, in my opinion, does not emasculate the High Court‟s power to impose costs where ends of justice so demand [See Mary Angel and Ors. vs State of T.N.: (1999) 5 SCC 209 at Pages 213, 216 to 217 and 222 (Paragraphs 8, 12 & 22 respectively)]. After taking into account the conduct of the petitioners it would be a travesty of justice if no cost is imposed. The petitioners have lost on substantive issues. Even in this Court submissions were advanced on the issue of interpretation of Section 145 (2) of the N.I. Act, when it was known to the learned counsel that not only the issue stood decided by this Court but that it was also affirmed by the Supreme Court. The latter part, that is, the affirmation of the judgment of this Court by the Supreme Court was brought to my notice by Mr Kalra. To be noted that the learned counsel appeared before the single Judge and on his own admission was involved with the proceedings in the Supreme Court. Despite which, the judgment of the Supreme Court was not placed on record on a specious plea that it was not available on the internet. A little effort would have demonstrated otherwise as the judgment could be obtained by visiting the official site of the Supreme Court, i.e., www.supremecourtofindia.nic.in on the same day. In all this precious Court time was lost. It is in these circumstances, I feel constrained to impose a cost of Rs 10,000/- in respect of each of the petitions. The cost shall be paid to the complainant

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written by kanishka choudhary intern under legal vidhiya