HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In the High Court of Judicature at Allahabad Lucknow Bench, Lucknow A.F.R. Reserved Court No. - 19 Case :- U/S 482/378/407 No. - 1439 of 2010 Petitioner :- Ishaq & Ors. Respondent :- State Of U.P. & Another Petitioner Counsel :- Anil Kumar Singh Visen Respondent Counsel :- Govt. Advocate,Suhail Kashif Hon'ble S.C. Chaurasia,J.
1. This petition under Section 482 Cr.P.C. has been filed with the prayer that the impugned summoning order dated 08.02.2010, passed by the learned Chief Judicial Magistrate, Barabanki, in Complaint Case No. 4409 of 2009, Afsana versus Ishaq and others, contained as Annexure No.1 to the petition, may be quashed.
2. The brief facts, giving rise to this petition, are that the opposite party No.2, Afsana filed a Complaint Case against Ishaq and 6 others in the court of Chief Judicial Magistrate, Barabanki with the allegations that her marriage was performed with Ishaq on 02.05.2007 and her father had given dowry in the marriage as per his capacity. After the marriage, the accused started demanding motor-cycle. They used to subject her to cruelty in various ways on account of non-fulfillment of said demand of dowry. On account of beating, she sustained injuries in her uterus and she used to remain ill, but, they did not provide proper treatment to her. Her father, Sri Yunus, carried her from her in-laws house to his house on 11.07.2008 and got her treated and since then, she is residing at her parents house. On 12.05.2009, at about 11.00 A.M., the accused/opposite parties Nos. 1 to 6 came to her parents house and hurled abuses and asked to provide motor-cycle immediately and send her with them, otherwise, she would be divorced. On it, her father requested to provide sometime, but, they got annoyed and started damaging the house-hold goods in the house. They assaulted the complainant and her father by fists and kicks. They gave threats that if the motor-cycle is not provided within two days, they would be killed. The said incident was seen by Shobhna Suman and Zareena. Her father went to lodge F.I.R. at Police Station Fatehpur, but, his report was not written. Thereafter, an application was given to the Superintendent of Police, Barabanki on 13.5.2009, but, no action was taken.
3. The complainant, Afsana examined herself under Section 200 Cr.P.C. and examined Shobhna Suman, P.W.1 and Shafikun, P.W.2, in support of her case, under Section 202 Cr.P.C. The learned Chief Judicial Magistrate, after considering the allegations made in the complaint and the evidence produced by the complainant, was of the view that a, prima-facie, case has been made out and, consequently, he has ordered to summon the accused under Section 498-A I.P.C., vide order dated 08.02.2010. Feeling aggrieved by the said order, the petitioners/accused have filed this petition.
4. Counter affidavit and rejoinder affidavit have been exchanged between the parties.
5. I have heard Sri Anil Kumar Singh Visen, learned counsel for the petitioners, Sri S.M. Kashif, learned A.G.A., Sri Suhail Kashif, learned counsel for the opposite party No.2 and perused the record.
6. Learned counsel for the petitioners has submitted that the wife of the petitioner No.1(complainant) went to her parents house without his consent and refused to return from there, unless the house is purchased in her favour at Lucknow; that the petitioner No.1 filed a suit for restitution of conjugal rights on 20.12.2008, in the court of Civil Judge (Junior Division), Gonda and the complainant appeared in the said court, but, did not file any written statement and the said suit was decreed exparte, vide judgment and order dated 15.04.2011,but, the complainant is not willing to go along with her husband; that the complaint has been filed on the basis of wrong facts, in order to harass the husband and his family members; that the learned Chief Judicial Magistrate, without applying its judicial mind and without complying with the provision of Sub-section (1) of Section 202 Cr.P.C., has summoned the accused illegally and, hence, the impugned summoning order as well as entire proceedings of the Complaint Case deserve to be quashed. In support of his contentions, he has placed reliance on the decision of Hon'ble Supreme Court, reported in [2011(1) JIC 443 (SC)], Manoj Mahavir Prasad Khaitan Vs. Ram Gopal Poddar & Anr.
7. Learned A.G.A as well as learned counsel for the opposite party No.2, have submitted that the impugned summoning order is based on the evidence available on record and there is no illegality in the said order, so as to call for any interference by this Court in exercise of its inherent powers under Section 482 Cr.P.C. They have further submitted that the defence put forward by the petitioners cannot be considered at this stage.
8. The Section 202 Cr.P.C. may be reproduced as under:-
202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present(if any) have been examined on oath under Section 200.
(2) In an inquiry under sub-section(1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
9. Learned counsel for the petitioners has submitted that Sub-section (1) of Section 202 Cr.P.C. has been amended by Act No.25 of 2005 and the amendment has been made applicable w.e.f. 23.6.2006, and in view of amended provision, it was mandatory for the learned Chief Judicial Magistrate to conduct inquiry either himself or direct an Investigation to be made by a police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding, because, the accused are resident of places beyond the area in which the said court exercises its jurisdiction, but, learned Chief Judicial Magistrate has not complied with the said amended provision before issuing process against the petitioners and, hence, the impugned order deserves to be quashed.
10. From the perusal of Sub-section (1) of Section 202 Cr.P.C., it is clear that if the accused reside beyond the territorial jurisdiction of the concerned court, the inquiry is required to be conducted in the manner provided therein, before issue of process against the accused. Sub-section (2) of Section 202 Cr.P.C. provides that in an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath. In the instant case, it is not disputed that the petitioners/accused reside beyond the territorial jurisdiction of the concerned court. The process has not been issued against the petitioners on the basis of statement of the complainant recorded under Section 200 Cr.P.C. The learned Chief Judicial Magistrate has recorded the statements of Shobhna Suman, P.W.1 and Shafikun, P.W.2, in connection with inquiry, under Sub-section (1) of Section 202 Cr.P.C. and, thereafter, on being satisfied that a, prima-facie, case has been made out against the accused under Section 498-A I.P.C., has ordered to issue summons against them. Thus, it is clear that the learned Chief Judicial Magistrate has complied with the amended provision of Sub-section (1) of Section 202 Cr.P.C., before issuing summons against the petitioners/accused. The contention of the learned counsel for the petitioners is that after recording the evidence of the said witnesses, under Section 202 Cr.P.C., no independent inquiry was conducted by the learned Chief Judicial Magistrate before issuing process against the petitioners. The evidence of the said witnesses has been recorded under Sub-section (2) of Section 202 Cr.P.C. and, thereafter, there was no scope for any other independent inquiry, particularly, when he was satisfied that in view of the allegations made in the complaint and the evidence produced by the complainant in support thereof, there is sufficient ground for proceeding against the accused, as the accused had no right of hearing at that stage. I do not agree with the contention of the learned counsel for the petitioners that amended provision of Sub-section (1) of Section 202 Cr.P.C. was not complied with by the learned Chief Judicial Magistrate before issuing process against the petitioners.
11. In the case of Manoj Mahavir Prasad Khaitan Versus Ram Gopal Poddar & Anr. (supra), Smt. Rekha Poddar, the daughter-in-law of respondent No.1 (sister of appellant), filed a complaint for the offences punishable under Sections 498-A and 406 I.P.C. read with Section 4 of the Dowry Prohibition Act, against her father-in-law, respondent No.1. In connection with the said case, the appellant accompanied the police officers, who went to the matrimonial house of Smt Rekha Poddar and raid was conducted. The complaint was filed by the respondent No.1 against the appellant with the allegations that he had stolen two golden bangles during raid conducted by the police officers and on the basis of the complaint and statement of the complainant/respondent No.1 alone, the concerned Magistrate issued the summons against him. No complaint was made against the two accompanying police officers. In that background, it was observed by the Hon'ble Apex Court that on the face of it, the allegations were absurd and without any basis. It is absurd to think that the appellant, who was present with the police party, would have stolen the golden bangles in their presence and it was held that the complaint wholly lacks the bonafides and it was obviously with the indirect motive for hounding the appellant who was none else but the brother of the daughter-in-law of respondent No.1, who had started the criminal proceedings. Consequently, the criminal proceedings initiated by the respondent No.1, were quashed.
12. The petitioner No.1, filed the suit for restitution of conjugal rights against Smt. Afsana and others, in the court of Civil Judge (Junior Division), Gonda. In continuation of the alleged harassment caused by the accused to the complainant due to non-fulfillment of demand of dowry, the alleged incident took place during the pendency of the suit for restitution of conjugal rights. In the instant case, the complainant as well as two witnesses examined by her, have supported the allegations made in the complaint. The petitioners have been summoned by the learned Chief Judicial Magistrate, after being satisfied that a, prima-facie, case under Section 498-A I.P.C. has been made out against them on the basis of the evidence produced by the complainant. The allegations made against the petitioners cannot be said to be absurd. Every criminal case has to be judged on the particular facts of it. In the instant case, there is no valid or sufficient ground to quash the criminal proceedings at this stage. The case of Manoj Mahavir Prasad Khaitan Versus Ram Gopal Poddar & Anr. (supra) is distinguishable on facts and is of no help to the petitioners.
13. While exercising powers under Section 482 Cr.P.C., this Court does not function as a Court of appeal or revision. Inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. No inquiry can be conducted at this stage as to whether the allegations made against the petitioners, are true or false. It would not be appropriate to comment or express any opinion on the truthfulness or veracity of the allegations made against the petitioners. It can be examined by the concerned court at the appropriate stage. The inherent powers cannot be exercised to stifle the lawful prosecution. The petitioners are at liberty to raise the said pleas in the concerned court.
14. The allegations made in the complaint against the petitioners coupled with statements of the complainant and the said witnesses, prima-facie, disclose the commission of cognizable offence. While passing the summoning order, the concerned court is not required to give reasons in detail. The process under Section 204 Cr.P.C. can be issued, if the concerned court is satisfied that there is sufficient ground for proceeding against the accused. I do not find any manifest error of law in the impugned order dated 08.02.2010, so as to call for interference by this Court in exercise of its inherent powers under Section 482 Cr.P.C.
15. In view of the foregoing discussions, I am of the view that this petition lacks merit and it is dismissed accordingly. Interim order, if any, stands vacated.
Dated: September 01, 2011 Sanjay/