DESHNA BHANSALI vs STATE OF RAJASTHAN

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HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Revision Petition No. 87/2022
CNR: RJHC010069542022 | URN: CRLR / 243U / 2022
Deshna Bhansali D/o Rajkumar Bhansali, Aged About 30 Years,
House No. B-170, Janta Colony Jaipur At Present T, B 10/05
Vedanta Vihar Dariba, Teh. Railmagra, Dist. Rajsamand,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Karan Singh S/o Ramsingh, Aged About 50 Years,
Chandana Tehsil Shivganj, Dist. Sirohi Rajasthan.
----Respondents
For Petitioner(s) : Mr. Farooq Ahmed
For Respondent(s) : Mr. Narendra Gehlot, Dy.GA
None present for complainant
HON'BLE MR. JUSTICE FARJAND ALI
Order
Reportable-
30/10/2026
1. The petitioner has assailed the legality and validity of the
order dated 05.11.2019 passed by the learned Additional Sessions
Judge, Rajsamand in Sessions Case No.11/2014, whereby the
application preferred by respondent No.2 under Section 193 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as 'the
CrPC') was allowed and cognizance was taken against the
petitioner for the offence punishable under Section 306 IPC,
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notwithstanding her exoneration during further investigation and
the order dated 04.02.2014 passed by the learned Judicial
Magistrate, Railmagra, accepting the investigating agency's
application under Section 169 CrPC. The petitioner has also called
in question the consequential order dated 16.12.2021, whereby
the learned trial court, taking note of the petitioner's continued
non-appearance pursuant to the process issued against her and
the report regarding her alleged residence abroad, directed further
steps for ascertaining her movable and immovable properties with
a view to securing her presence before the court.
2. Briefly stated, the facts giving rise to the present controversy
are that one Narender Singh died on 13.06.2013. The prosecution
case revolves around an alleged love triangle involving the
deceased and two other accused persons, namely, Abhimanyu
Kumar and Ankita Yadav, with the present petitioner also being
subsequently implicated in the matter. It is alleged that the
deceased had developed an infatuation towards his fellow
employee, Ankita Yadav, and was apparently distressed by the
developing relationship between Ankita Yadav and Abhimanyu
Kumar. The circumstances are stated to have adversely affected
the mental and emotional well-being of the deceased, who, for a
short period preceding the incident, allegedly started exhibiting
erratic behaviour in his dealings with family members and friends.
2.1. On the fateful night of 13.06.2013, Narender Singh
committed suicide, allegedly on account of the overwhelming
sense of insecurity and emotional distress which had developed in
his mind. Before taking the extreme step, he stated to have left
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behind a two-page suicide note, wherein he expressed his mental
anguish and attributed responsibility for his death to three
persons, namely, Abhimanyu Kumar, Ankita Yadav and the present
petitioner.
2.2. On the basis of the aforesaid suicide note, a criminal case
came to be registered for the offence punishable under Section
306 IPC against all three persons. Investigation commenced
accordingly and ultimately culminated in the submission of
charge-sheet No.153/2013 dated 26.07.2013 against all three
accused persons, including the present petitioner. However, in a
subsequent development, after submission of the charge-sheet,
the investigating agency, apparently upon receiving complaints
regarding the fairness and propriety of the investigation conducted
earlier, undertook further investigation under the directions of its
superior officers. Upon a fresh and comprehensive examination of
the material collected during investigation, the investigating officer
arrived at the conclusion that the evidence available on record was
insufficient to establish the involvement of the present petitioner
in the alleged offence. Consequently, a supplementary charge-
sheet No.240/2013 dated 19.12.2013 came to be submitted,
whereby the petitioner was exonerated and her name was deleted
from the array of accused persons on account of the absence of
sufficient incriminating material.
2.3. Not only this, the investigating officer also moved an
application under Section 169 CrPC before the learned Judicial
Magistrate, Railmagra, specifically recording that no sufficient
ground for suspicion was available against the petitioner so as to
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justify her continued prosecution. The learned Magistrate, upon
consideration of the material available on record and its due
evaluation, accepted the application moved by the investigating
agency vide order dated 04.02.2014. The learned Magistrate,
having arrived at the conclusion that no prima facie case was
made out against the petitioner, accordingly discharged her bail
bonds.
2.4. It would be relevant to mention that the uncle of the
deceased, who happens to be the complainant in the present
matter, moved an application before the learned Judicial
Magistrate seeking cognizance against the petitioner. The said
application came to be decided by the learned Magistrate vide
order dated 04.02.2014, whereby the prayer for taking cognizance
against the petitioner was declined, apparently upon finding no
sufficient grounds to proceed against him.
2.5. Thereafter, the learned Magistrate took cognizance of the
offence on 15.02.2014 against the remaining two accused persons
and, having regard to the fact that the offence was exclusively
triable by the Court of Sessions, committed the matter to the
Court of the learned Additional Sessions Judge, Rajsamand for
further proceedings in accordance with law.
2.6. Significantly, on 14.05.2014, the learned Additional Sessions
Judge proceeded to frame charges against the two accused
persons, namely, Abhimanyu Kumar and Ankita Yadav, for the
offence punishable under Section 306 IPC. The trial accordingly
commenced against the said two accused persons, whereas the
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present petitioner was not included in the array of accused at that
stage.
2.7. Much thereafter, the complainant moved an application under
Section 193 CrPC before the learned trial court, seeking to array
the present petitioner as an additional accused and to proceed
against her for the offence punishable under Section 306 IPC. The
application was apparently moved after the trial had commenced
and the prosecution witnesses had been summoned.
2.8. Interestingly, the learned Addl. Public Prosecutor, in the reply
dated 26.08.2015 filed to the aforesaid application, specifically
opposed the prayer for arraigning the petitioner as an additional
accused. The stand taken by the prosecution was categorical to
the effect that no prima facie case existed against the petitioner
warranting her summoning for trial.
2.9. Despite the aforesaid stand of the prosecution and the earlier
order passed by the learned Judicial Magistrate accepting the
investigating agency's application under Section 169 CrPC, and
dismissal of similar prayer earlier, the learned trial court
proceeded to accept the complainant's application under Section
193 CrPC. Consequently, cognizance was taken against the
petitioner for the offence punishable under Section 306 IPC, and a
warrant of arrest came to be issued for securing her presence
before the court.
2.10. Subsequently, vide order dated 16.12.2021, the learned
trial court, taking note of the fact that the petitioner had not
appeared despite issuance of process and that, as per the report
submitted by her grandfather, she had allegedly been residing in
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Bangkok, Thailand, for the preceding four years, directed the
police authorities to procure details of her movable and immovable
properties through the concerned municipal authorities. The
matter was accordingly directed to be listed for further
proceedings upon receipt of the requisite information, with a view
to take appropriate steps in accordance with law for securing the
petitioner's presence before the court.
2.11. It is in these circumstances that the petitioner, feeling
aggrieved by the orders impugned, has approached this Court,
questioning not merely the legality of the proceedings initiated
against her but also the manner in which she has been summoned
to face trial despite the earlier investigation, the supplementary
charge-sheet exonerating her, and the order passed by the
learned Magistrate accepting the application under Section 169
CrPC.
Observations
3. Having heard learned counsel for the petitioner and the learned
Public Prosecutor, and upon meticulous appraisal of the material
available on record, including the orders impugned, this Court
finds that the controversy admits of determination on a narrow
but significant question of law, namely, the stage at which the
jurisdiction under Section 193 CrPC can legitimately be invoked by
the Court of Sessions for proceeding against a person who has not
been sent up for trial by the investigating agency and has not
been arraigned as an accused before commencement of the trial.
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4. At the outset, it is apposite to delineate the distinction between
the jurisdiction exercisable by a Court of Sessions under Section
193 CrPC and the extraordinary power conferred upon a criminal
court under Section 319 CrPC. Although both provisions
contemplate the possibility of proceeding against a person who
has not been arrayed as an accused, the statutory scheme, the
stage of their invocation and the nature of material upon which
such jurisdiction can be exercised are fundamentally distinct. The
two provisions operate in different procedural fields and cannot be
treated as interchangeable sources of jurisdiction.
5. Section 193 CrPC confers upon the Court of Sessions the
jurisdiction to take cognizance of an offence as a court of original
jurisdiction upon the case being committed to it by a Magistrate.
The provision enables the Sessions Court, at the appropriate pre-
trial stage, to independently examine the police report and the
accompanying material and, if the circumstances so warrant,
proceed against a person whose involvement is disclosed from the
material collected during investigation, notwithstanding the fact
that such person has not been forwarded for trial by the
investigating agency. The power is not circumscribed by the
opinion formed by the police, for the judicial determination of
culpability cannot be made subservient to the investigative
conclusions of the police.
6. However, the aforesaid power cannot be construed as an
unbridled authority to invoke Section 193 CrPC at any subsequent
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stage of the proceedings, irrespective of the procedural
developments that have already taken place. The statutory
scheme contemplates distinct stages of inquiry and trial, and the
commencement of trial upon framing of charges assumes
considerable significance in determining the source of jurisdiction
available to the Court for proceeding against an additional person.
7. In this regard, the Constitution Bench judgment of the Hon'ble
Supreme Court in Dharam Pal & Others v. State of Haryana &
Another, reported in AIR 2013 SC 3018, requires due
consideration. The Constitution Bench authoritatively held that
upon committal of a case, the Court of Sessions is competent to
take cognizance under Section 193 CrPC against a person who has
not been sent up for trial, provided the material available in the
police papers discloses his involvement. The judgment, however,
does not lay down that the jurisdiction under Section 193 CrPC
can be invoked indiscriminately even after the trial has
commenced by framing of charges. The ratio of the said judgment
cannot be extended beyond the legal proposition which it actually
enunciates.
8. The aforesaid position stands further elucidated by the
subsequent Constitution Bench decision in Hardeep Singh v. State
of Punjab & Others, reported in (2014) 3 SCC 92 , wherein the
Hon'ble Supreme Court, while examining the scope and ambit of
Section 319 CrPC, expressly recognised that the trial commences
upon the framing of charges. The Court explained that the stage
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preceding the framing of charges is one of inquiry, whereas the
stage subsequent thereto constitutes the trial. It was further
clarified that the power under Section 319 CrPC can be exercised
on the basis of material which comes before the Court in the
course of an inquiry or trial, subject to the statutory requirements
governing its exercise. The Constitution Bench also approved the
proposition laid down in Dharam Pal that the Sessions Court need
not await the recording of evidence under Section 319 CrPC where
the power under Section 193 CrPC is being exercised at the
appropriate stage on the basis of the police papers.
9. Thus, the combined reading of Dharam Pal (supra) and Hardeep
Singh (supra) leaves no manner of doubt that the jurisdiction
under Section 193 CrPC and the power under Section 319 CrPC
are governed by distinct procedural considerations. The former
enables the Sessions Court to exercise its original jurisdiction upon
committal, at the pre-trial stage, on the basis of the material
accompanying the police report; whereas, once the charges have
been framed and the trial has commenced, the Court must
proceed in accordance with the statutory mechanism
contemplated under Section 319 CrPC for bringing an additional
accused into the proceedings. At that stage, the Court is required
to await the emergence of relevant evidence in the course of
inquiry or trial and cannot resort to Section 193 CrPC as a
substitute for the statutory safeguards embodied in Section 319
CrPC.
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10. The distinction is not merely procedural or technical; it goes to
the root of the jurisdiction exercised by the Court. The legislature,
having consciously provided separate mechanisms for different
stages of criminal proceedings, cannot be presumed to have
intended that one provision should be employed to circumvent the
limitations and safeguards prescribed under the other. The settled
principle quando aliquid prohibetur ex directo, prohibetur et per
obliquum signifies that what cannot be done directly cannot be
permitted to be achieved indirectly. Consequently, the jurisdiction
under Section 193 CrPC cannot be employed to bypass the
statutory framework governing the summoning of additional
accused after commencement of trial.
11. Applying the aforesaid principles to the facts of the present
case, an important aspect which cannot be lost sight of is the
chronology of the proceedings before the learned Sessions Court.
The petitioner was initially arrayed as an accused in the first
charge-sheet submitted by the investigating agency. However,
upon further investigation, the investigating officer submitted a
supplementary charge-sheet dated 19.12.2013, excluding the
petitioner from the array of accused persons on the ground that
sufficient incriminating material was not available against her. The
investigating agency also moved an application under Section 169
CrPC, which came to be accepted by the learned Judicial
Magistrate vide order dated 04.02.2014, resulting in the discharge
of the petitioner's bail bonds.
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12. Thereafter, the learned Magistrate took cognizance against the
remaining two accused persons and committed the case to the
Court of Sessions. The learned Additional Sessions Judge,
Rajsamand, proceeded to frame charges against Abhimanyu
Kumar and Ankita Yadav on 14.05.2014. Thus, the trial had
formally commenced against the said accused persons. It is of
considerable significance that the complainant's application
seeking to proceed against the petitioner under Section 193 CrPC,
though presented on 11.07.2014, came to be decided only on
05.11.2019, nearly five years after the framing of charges. The
jurisdiction of the learned Sessions Court was, therefore, required
to be examined in the backdrop of the procedural stage which had
already been crossed, rather than by merely referring to the
factum of committal of the case.
12.1 It is pertinent to observe that Sections 190 and 193 CrPC
operate at the stage of taking cognizance, the former conferring
such power upon the Magistrate and the latter upon the Court of
Sessions upon committal of the case. The jurisdiction under
Section 193 CrPC is available to the Court of Sessions when it first
assumes jurisdiction as a Court of original jurisdiction upon receipt
of the committed case, and, at that stage, it may proceed against
a person whose involvement is disclosed from the material on
record, notwithstanding that such person has not been sent up for
trial. However, once the proceedings have crossed the stage of
cognizance and the Court has proceeded to frame charges against
the accused persons, thereby commencing the trial, the matter
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cannot be reverted to the earlier stage so as to invoke Section 193
CrPC afresh. In the present case, the learned Magistrate, having
accepted the investigating agency's application under Section 169
CrPC qua the petitioner, had discharged her bail bonds, and the
case was thereafter committed to the Court of Sessions only
against the remaining accused persons. The learned Sessions
Court, having already exercised its jurisdiction and proceeded to
frame charges against the co-accused, could not subsequently roll
back the proceedings to the stage of taking cognizance under
Section 193 CrPC for arraigning the petitioner as an additional
accused. At that subsequent stage, the only permissible recourse,
subject to fulfilment of the statutory requirements, was the
mechanism envisaged under Section 319 CrPC.
13. A perusal of the impugned order dated 05.11.2019 reveals
that the learned trial Court proceeded to summon the petitioner
essentially on the strength of the suicide note allegedly left behind
by the deceased and the statements of certain witnesses recorded
under Section 161 CrPC during investigation. The learned Court
also expressed its dissatisfaction with the conclusion arrived at by
the investigating agency under Section 169 CrPC, observing that
the police had not furnished adequate reasons for excluding the
petitioner from the array of accused persons. On that premise,
and by placing reliance upon the decision reported in 2013 Cr.L.R.
(SC) 818, corresponding to Dharam Pal v. State of Haryana
(supra), the learned Court invoked Section 193 CrPC and
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proceeded to take cognizance against the petitioner for the
offence punishable under Section 306 IPC.
14. This Court finds that the aforesaid approach suffers from a
fundamental error of law. The learned trial Court, while passing
the order dated 05.11.2019, appears to have considered the
question of its jurisdiction as though the proceedings were still at
the stage immediately following committal. The fact that the case
had already progressed beyond the stage of inquiry and charges
had been framed against the co-accused on 14.05.2014 was not
accorded the requisite legal significance. Once the trial had
commenced, the learned Court could not have invoked Section
193 CrPC, after an inordinate lapse of time, merely on the basis of
material collected during investigation, without adhering to the
procedural mechanism contemplated under Section 319 CrPC.
15. It is equally significant that the material relied upon by the
complainant, namely, the suicide note and the statements of
witnesses recorded under Section 161 CrPC, formed part of the
investigation papers and were available before the learned
Sessions Court even prior to the framing of charges against the
co-accused. Nevertheless, the proceedings had progressed to the
stage of trial without the petitioner being summoned as an
accused. If, at that subsequent stage, the complainant intended to
seek the petitioner's arraignment on the basis of evidence
emerging during the trial, the appropriate statutory recourse was
Section 319 CrPC. The mere availability of investigative material
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on the judicial file cannot be equated with evidence emerging
before the Court in the course of inquiry or trial for the purpose of
invoking the said provision. The distinction between material
collected during investigation and evidence brought before the
Court is of substantive legal significance and cannot be
obliterated.
16. It is also pertinent to notice that the learned Additional Public
Prosecutor, in the reply dated 26.08.2015, had categorically
opposed the complainant's application, asserting that no cogent or
sufficient material existed against the petitioner to warrant her
being summoned as an additional accused. Although the opinion
of the prosecuting agency cannot fetter the independent judicial
discretion of the Court, nor can the Court's jurisdiction be made
dependent upon the stand taken by the prosecution, the fact
remains that the learned trial Court was required to exercise its
jurisdiction strictly within the bounds prescribed by law. The
opposition of the prosecution, the supplementary charge-sheet
excluding the petitioner and the earlier order accepting the
application under Section 169 CrPC were all relevant
circumstances requiring due consideration. None of these
circumstances could, however, enlarge or curtail the jurisdiction
conferred by the statute.
17. This Court is conscious of the settled proposition that the
investigating agency's opinion regarding the innocence or
involvement of a person is not conclusive and does not bind the
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criminal court. A person cannot claim immunity from prosecution
merely because the police have not sent him up for trial or have
subsequently excluded his name from the charge-sheet. Equally,
the judicial power to summon an additional accused is not
intended to remain hostage to the conclusions drawn by the
investigating agency. However, the exercise of such power must
be referable to the correct statutory provision and must take place
at the stage contemplated by law. The existence of jurisdiction
and the manner of its exercise are two inseparable facets of a
valid judicial determination. An otherwise permissible judicial
objective cannot validate an order passed by invoking a provision
which is not available at the relevant procedural stage.
18. The subsequent order dated 16.12.2021 also does not
withstand judicial scrutiny. A perusal thereof reveals that the
learned trial Court proceeded on the premise that cognizance
against the petitioner had already been validly taken vide order
dated 05.11.2019. The subsequent directions regarding securing
her presence, obtaining particulars of her movable and immovable
properties and undertaking further coercive measures were
consequential steps founded upon the earlier order. The learned
Court did not independently examine the jurisdictional infirmity
underlying the order dated 05.11.2019; rather, it proceeded to
implement the consequences flowing therefrom. Once the
foundational order itself is found to be legally unsustainable, the
consequential proceedings founded exclusively upon such order
cannot be permitted to survive.
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19. At this juncture, it is necessary to clarify that this Court is not
examining the evidentiary worth of the suicide note or recording
any conclusive opinion regarding the alleged involvement or
innocence of the petitioner in the unfortunate demise of Narender
Singh. The allegations contained in the suicide note and the
statements attributed to the witnesses may constitute matters
requiring appropriate judicial consideration in accordance with law.
However, the question before this Court is confined to the legality
of the procedure adopted by the learned Sessions Court while
summoning the petitioner after the commencement of trial. The
merits of the allegations cannot be permitted to obscure the
jurisdictional question which falls for determination in the present
revision petition.
20. The criminal justice system undoubtedly places a duty upon
the Court to ensure that no person who is prima facie found to be
involved in the commission of an offence escapes the process of
law. At the same time, the exercise of judicial power must remain
anchored in the procedure established by law. The maxim actus
curiae neminem gravabit embodies the principle that an act of the
Court should prejudice no person; correspondingly, no coercive
consequence can be sustained merely by reference to an order
which suffers from an inherent legal infirmity. The procedural
safeguards prescribed by the legislature are not empty formalities
but substantive guarantees against arbitrary exercise of criminal
jurisdiction.
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21. In view of the foregoing discussion, this Court is of the
considered opinion that the learned Additional Sessions Judge
committed a jurisdictional error in invoking Section 193 CrPC vide
order dated 05.11.2019, despite the fact that charges against the
co-accused had already been framed and the trial had
commenced. The power under Section 193 CrPC could not have
been invoked at that belated stage as a substitute for the
statutory mechanism available under Section 319 CrPC. The
impugned order, therefore, suffers from an error of law apparent
on the face of the record and cannot be sustained.
22. Consequently, the present revision petition deserves to be and
is hereby allowed. The order dated 05.11.2019 passed by the
learned Additional Sessions Judge, Rajsamand, taking cognizance
against the petitioner under Section 306 IPC by invoking Section
193 CrPC, as well as the consequential order dated 16.12.2021,
are hereby quashed and set aside qua the petitioner.
It is, however, clarified that the observations made herein shall
not be construed as an expression of opinion on the merits of the
allegations against the petitioner. The learned trial Court shall
remain at liberty to proceed in accordance with law, if the
requisite statutory conditions for exercise of jurisdiction under
Section 319 CrPC are satisfied on the basis of evidence brought
before it during the course of inquiry or trial. Nothing observed
herein shall prejudice the rights and contentions of the parties in
that regard.
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23. Stay application, if any, and all pending applications also stand
disposed of.
(FARJAND ALI),J
Crt_20 (1763)
S-A/40
Mamta Tak
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