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Smt. Anita And Others vs State Of U.P. And Another on 14 November, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?A.F.R.

Court No. – 29

Case :- CRIMINAL REVISION No. – 553 of 2005

Revisionist :- Smt. Anita And Others

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- A.K. Shukla

Counsel for Opposite Party :- Govt. Advocate,K.K. Tewari

Hon’ble Rajesh Singh Chauhan,J.

Heard Sri Manish Vajpayee, learned counsel holding brief of Sri A.K. Shukla, learned counsel for the revisionist and Sri Anirudh Singh, learned AGA-I for the State.

By means of this criminal revision the correctness of the judgment and order dated 21.9.2005 passed by the then Additional District and Special Sessions Judge (E.C. Act), Sitapur in Criminal Revision No. 134 of 2005 has been assailed whereby the Additional District and Special Sessions Judge has allowed the criminal revision directing the learned court-below to summon the revisionists as accused to stand their trial in Criminal Complaint No. 426 of 2002 : Smt. Kirti vs. Prem Prakash and five others.

The brief facts of the case are that Prem Prakash @ Sanjiv Misra is husband of Smt. Kirti who is opposite party no. 2. Prem Prakash is son of revisionists no. 4 and 5, Sri Ravi Kant Misra and Smt. Kamini Misra. Revisionists no. 2 and 3, Jai Prakash @ Rajiv Misra and Amit Misra are brothers of Prem Prakash. Revisionist no. 1, Smt. Anita is wife of revisionist no. 2, Jai Prakash.

Smt. Kirti, opposite party no. 2 filed a criminal complaint dated 23.7.2002 in the court of Civil Judge (J.D.) Biswan, Sitapur against all the revisionists including Prem Prakash under sections 498A, 323, 504, 506 I.P.C. read with section 3/4 D.P. Act. In the said complaint the allegation of dowry, torture etc. have been leveled against all the revisionists including Prem Prakash. It has been further alleged that Smt. Kirti was being compelled to take divorce from her husband as the demand of dowry was not being satisfied. The learned Civil Judge passed an order dated 23.8.2002 summoning all the revisionists including the husband, Prem Prakash in the aforesaid sections.

Feeling aggrieved out of order dated 23.8.2002 all the revisionists including husband, Prem Prakash has filed Criminal Revision No. 166 of 2002 and the said criminal revision was allowed by the Court of sessions vide order dated 12.3.2004 setting aside the order dated 23.8.2002. By means of order dated 12.3.2004 the revisional Court has not only set aside the order passed by the learned Civil Judge on 23.8.2002 but also permitted the revisionists hereto including Prem Prakash to file protest petition before the learned court-below remanding the issue before the learned Civil Judge to pass fresh order appreciating the merits of the issue and the direction was also issued that the learned court-below shall examine the issue as to whether the prima-facie case is made out against the revisionists.

In compliance of the aforesaid dated 12.3.2004 all the revisionists including husband, Prem Prakash has filed their protest petition before the learned court-below and learned court-below decided the said protest petition vide order dated 17.1.2005 whereby the learned court-below appreciated the merits of the issue and also appreciated the fact as to whether prima-facie case is made out against all the revisionists or not strictly in compliance of order dated 12.3.2004 passed by the revisional court.

After perusing the entire material on record and also hearing the learned counsel for the parties the learned court-below came to conclusion that prima-facie the offence in question is made out only against the husband, namely Prem Prakash under section 498A, 323, 506 I.P.C. and 3/4 Dowry Prohibition Act but no offence is made out against the other accused persons who are the revisionists relatives.

Feeling aggrieved out of order dated 17.1.2005 wife, Smt. Kirti, opposite party no. 2 filed Criminal Revision No. 184 of 2004 before the court of sessions and the said revision was decided by the Additional District and Special Sessions Judge (E.C. Act) Sitapur vide order dated 21.9.2005. The learned revisional court was pleased to restore the earlier order dated 23.8.2002 passed by the learned court-below with further direction that along with husband Prem Prakash other accused be summoned. While arriving on the aforesaid conclusion the learned revisional court has considered the judgment of Hon’ble Apex Court in the case of K.M. Mathew vs. State of Kerala and another reported in (1992) 1 Supreme Court Cases 217 and Adalat Prasad vs. Rooplal Jindal and others reported in (2004) 7 Supreme Court Cases 338.

In the light of the aforesaid judgment of the Hon’ble Apex Court the view of the learned revisional Court was that since the learned court-below had already summoned all accused persons vide order dated 23.8.2002, therefore, in the protest petition the Court concerned may not take any other view except to summon all accused persons including husband.

Feeling aggrieved out of order dated 21.9.2005 the instant criminal revision has been filed by all the family members of Prem Prakash, husband, who were made accused in the case. Thus, this criminal revision has not been filed by the husband, Prem Prakash.

I have perused the order dated 12.3.2004 passed by the revisional court whereby the order dated 23.8.2002 passed by the learned trial court was set aside permitting the revisionist including the husband to file protest before the learned court-below and direction was issued to decide the said protest petition on merits considering the relevant fact as to whether a prima-facie case is made out against the revisionists including husband or not.

Since the order dated 23.8.2002 was set aside by the revisional court, therefore, that order would be treated as nonest in the eyes of law. Not only the above when the revisional court has specifically directed the learned court-below to consider and decide the protest petition on merits considering the relevant fact as to whether prima-facie case is made out against all the revisionists including husband, it was incumbent upon the learned court-below to appreciate the entire issue on merits and examine carefully as to whether the prima-facie case is made out against the revisionists or not. Since the learned court-below has complied with the directions so issued by the revisional court in its letter and spirit, therefore, it may not be said that the revisional court had no option except to summon all accused persons in compliance of the order dated 23.8.2002 which had already been set aside by the revisional court vide its earlier order dated 12.3.2004.

The Hon’ble Apex Court in re: K.M. Mathew (supra) and Adalat Prasad (supra) has held that the Magistrate may not recall its order regarding summons if already issued but may drop the proceedings if he / she is satisfied on re-consideration of the complaint that there is no offence for which the accused could be tried. Para 8 10 of K.M. Mathew (supra) is being reproduced herein below:

“8. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.

10. It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. The complaint in the instant case does not contain any such allegation. In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive. No person should be tried without a prima facie case. The view taken by the High Court is untenable. The appeal is accordingly allowed. The order of the High Court is set aside.”

Paragraphs no. 15 and 16 of the judgment  Adalat Prasad (supra) is being reproduced herein below:

“15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.

16. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.”

The Hon’ble Apex Court in re: K.M. Mathew (supra) and Adalat Prasad (supra) has held that once the Magistrate has passed any order summoning the accused person, it may not recall its earlier order but the facts of this case are different with those cases, inasmuch as, in the present case the learned court-below has not recalled its earlier order but it has complied with the direction being issued by the revisional court dated 12.3.2004 whereby the order of the learned court-below dated 23.8.2002 was not only set aside but also the direction has been issued for disposal of protest petition on merits and to examine the fact as to whether the prima facie case is made out against the accused person. As per my view, the order dated 17.1.2005 is a compliance order of the revisional court. Therefore, the cases of K.M. Mathew (supra) and Adalat Prasad (supra) would not be applicable in the instant case.

Considering the facts and circumstances of the case as indicated herein above, I am of the considered view that the order dated 21.9.2005 passed by the Additional District and Special Sessions Judge (E.C. Act) Sitapur in Criminal Revision No. 134 of 2005 is not sustainable in the eyes of law and accordingly the aforesaid order dated 21.9.2005 is hereby set aside.

In the result, this criminal revision is allowed.

Order Date :- 14.11.2018

Om

[Rajesh Singh Chauhan, J.]

 

 

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