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Arun Kumar Sharma And Others vs State Of U.P. And Another on 9 December, 2016




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                             RESERVED
 
Court No. - 44 
 

 
Case :- CRIMINAL REVISION No. - 3704 of 2004 
 

 
Revisionist :- Arun Kumar Sharma And Others 
 
Opposite Party :- State Of U.P. And Another 
 
Counsel for Revisionist :- Brij Raj Singh 
 
Counsel for Opposite Party :- Govt. Advocate,A.Singh,J.N.Singh,M.Ali,S.C.Verma 
 

 
Hon'ble Amar Singh Chauhan,J. 

The revisionists Arun Kumar Sharma and seven others have preferred this criminal revision against the order dated 15.6.2004 passed by the Chief Judicial Magistrate, Kannauj in Complaint Case No. 2603 of 2003 (Munshi Lal vs. Arun Kumar) whereby the revisionists have been summoned under sections 498A, 323, 504, 506 IPC and 2/3 Dowry Prohibition Act, 1961 in pursuance of remand order passed by the Special Judge, SC/ST Act, Kannauj in Criminal Revision No. 22/14/2002 (Munshi Lal vs. State of U.P. and 7 others).

The facts which are requisite to be stated for adjudication of this revision are that complaint was filed with the allegation that marriage of the revisionist no. 1 Arun Kumar Sharma was solemnized with the daughter of opposite party no. 2 according to Hindu rites and rituals. As per status, sufficient dowry was given but the husband and in-laws were not satisfied with this dowry and used to harass his daughter by raising demand of motorcycle and fridge in dowry. On non-fulfillment of dowry, they poured kerosene oil on his daughter and obtained signature from his daughter on a blank paper. They also extended threat to cause death of his daughter. The husband and in-laws ousted his daughter after doing Marpeet. On receiving information, he fetched her daughter from in-laws’ house to Bharapur and got medically examined of his daughter.

After hearing the complainant and perusing the statement under sections 200 and 202 Cr.P.C. the Additional Chief Judicial Magistrate, Kannuaj comes to the conclusion that there is no sufficient material to proceed against the revisionists and, therefore, the complaint was rejected under section 203 Cr.P.C. against which revision was filed by the complainant. The Revisional Court allowed the revision assuming the jurisdiction of the Trial Court and directed the Chief Judicial Magistrate to summon the revisionists under sections 498A, 323, 504, 506 IPC and 2/3 Dowry Prohibition Act. In compliance of the order of the Revisional Court, the Chief Judicial Magistrate, Kannauj proceeded further with the case and summoned the revisionists to face trial.

Feeling aggrieved, revisionists came up before this Court in this revision.

Heard learned counsel for the parties, learned AGA for the State and perused the record.

Learned counsel for the revisionists submitted that the summoning order was passed in a mechanical way without applying his mind because the learned Magistrate at the first instance when the complaint was filed before him and the statement was recorded of the complainant and in support other witnesses came to the conclusion that no prima facie case is made out with the result that complaint was rejected under section 203 Cr.P.C against which revision was filed. The Special Judge in revision assumed the jurisdiction of the Trial Court and issued direction to summon the revisionists under sections 498A, 323, 504, 506 IPC and 2/3 Dowry Prohibition Act. It is further submitted that revisionists have neither demanded dowry nor subjected to cruelty or torture for demand of dowry. The Special Judge has exceeded his jurisdiction by directing the Trial Court to summon the accused instead of remanding the case with the direction to pass an appropriate order in the light of reasoning given in the body of the judgement. It is also submitted that entire family members including father, mother, brother, sister have been falsely implicated even the relative Fufa, has no concern at all, has been made accused in this case whereas no specific role has been assigned to them.

Per contra learned counsel for the complainant contends that the Judicial Magistrate-Ist Class, Kannauj illegally and arbitrarily dismissed the complaint by order dated 06.04.2002 without considering the entire facts and evidence available on record. The Revisional Court rightly allowed the criminal revision and summoned the revisionists for facing trial under sections 498A, 323, 504, 506 IPC and 2/3 Dowry Prohibition Act.

In this revision, the main point of determination is that whether there is sufficient material to proceed against the revisionists and revisional court can assume the power of the trial court and straightway can give direction to summon the accused rather to remand for disposal afresh.

Before averting to the claim of the parties, it is useful to quote the provision of section 203 and 204 Cr.P.C.

203. Dismissal of Complaint:- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

204. Issue of process:- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself), some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87″.

The expression “sufficient ground” in section 203 Cr.P.C. points exclusively to the facts which the complainant brings to the knowledge of the Magistrate for establishing a prima facie case against the suspected accused. The decision whether there is sufficient ground must be reached by the exercise of discretion based upon judicial consideration. A Magistrate may dismiss a complaint (a) if he finds that no offence has been committed upon the statement of the complainant; (b) if he distrust the statements by the complainant, and (c) if he finds that there is no sufficient ground for proceeding.

Relative scope of sections 203 and 204 Cr.P.C. was noticed and considered by Hon’ble the Supreme Court in Pepsi Foods Limited and another Vs. Special Judicial Magistrate and others (1998) 5 SCC 749 and held as under:

“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

The Bombay High Court in case of Vithal Vinayak Bhuskute and another vs. Narhari Pandurang Gandale and another, 1995 CRI.L.J. 3733 has held that sufficiency or insufficiency of the material for issuing the process is for the Court which is seized of the matter to decide. The learned Additional Sessions Judge was not well advised to comment that the material taken into consideration by the learned Magistrate was not sufficient for issuing the process. He was further in error in dismissing the complaint. Even if he had found that the material was not sufficient, the learned Additional Sessions Judge could have sent back the matter to the learned Magistrate to reconsider his decision and pass a fresh order for issuing the process to the accused. He, in no event, could dismiss the complaint. The order of the learned Additional Sessions Judge dismissing the complaint cannot be justified in law.

In the case in hand, the Chief Judicial Magistrate has passed the summoning order in compliance of the order passed by the Revisional Court. The Magistrate did not apply his mind. The Magistrate should show that on what material he has issued the process but in the impugned order the requisite factors, which are to be considered by the CJM, are lacking. For issuing the process against the accused, it has to be only seen whether prima facie case has been made out. The Magistrate is not required to go deep into the probative value of material on record. The Magistrate before issuing process against the accused must exercise his judicial mind to the facts of the case and law applicable thereto. The Court is not required to assess the evidence and consider the probabilities or improbabilities of the version of the complaint and or evaluate the sworn statement of the complainant or witness. The Magistrate under law at this stage is not permitted to embark upon meticulous examination of the evidence or material.

Generally, the husband is only responsible for security, welfare and maintenance but the practice is that all family members were implicated in this case even no over act has been assigned to in-laws. The Hon’ble Apex Court in case of Geeta Mehrotra and another vs. State of U.P. and another, 2012 Law Suit (SC) 716 held that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

For the reasons aforementioned above, the order passed by the Special Judge, SC/ST Act, Kannauj in Criminal Revision No. 22/14/2002 whereby the CJM is directed to summon the accused under sections 498A, 323, 504, 506 IPC and 2/3 Dowry Prohibition Act, is not justified. The Magistrate in compliance of that order without applying his mind summoned the accused by the impugned order is also not justified. Therefore, the impugned order passed by the Chief Judicial Magistrate is not liable to be sustained as it suffers from illegality.

The revision is allowed.

The impugned order, passed by the Chief Judicial Magistrate, Kannauj in Complaint Case No. 2603 of 2003 (Munshi Lal vs. Arun Kumar) is hereby set aside and the matter be remanded back to the CJM to decide the matter afresh according to law.

Office to communicate this order to the concerned court.

Order Date :- 09.12.2016

Puspendra

 

 

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