THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NO. 2212 OF 2019
ORDER:
1. The petitioner is aggrieved by the order of the learned Magistrate taking cognizance against the petitioner and issuing summons. The present petition is filed questioning the docket order dated 15.03.2019 directing the issuance of summons to this petitioner and another.
2. The 2nd respondent/defacto complainant filed complaint on 15.07.2015 alleging that this petitioner and three others have trespassed into her premises and abused her in most filthy language and threatened her with dire consequences.
3. On the basis of the said complaint, police investigated the case and filed charge sheet for the offences under Sections 448, 427 and 506 of IPC. However, while filing charge sheet, Investigating Officer found that there was no involvement of this petitioner and another in the incident, which conclusion was on the basis of the statement of witnesses L.Ws.2 and 3.
4. Learned Magistrate examined the 2nd respondent/ defacto complainant as PW.1 and during the course of her examination she stated that this petitioner and another person were also present 2 along with the charge sheeted accused A1 and A2 and she had threatened her of dire consequences and also damaged door glasses abusing in filthy language. On the basis of the said statement, learned Magistrate has taken cognizance on 15.03.2019 and issued summons.
5. Learned counsel for the petitioner would submit that the Magistrate was wrong in issuing the summons to the petitioner without a protest petition being filed. The procedure that has to be followed is to file a protest petition and on the basis of such protest application only, cognizance should have been taken. In the present case, when the police have found that this petitioner was not present at the scene on the basis of two witnesses L.Ws.2 and 3, learned Magistrate ought not to have issued summons to this petitioner. He further submits that a false criminal case is filed for the reason of the petitioner filing a case under Section 354 of IPC against the husband of the defacto complainant. He relied upon the judgment of the Hon'ble Supreme Court in the case of Kishan Lal v. Dharmendra Bafna and another1 and argued that the procedure adopted by the learned Magistrate is incorrect. 1 2010(1) ALD (Crl.) 213 (SC) 3
6. Learned Magistrate recorded the statement of P.W.1, in which it was clearly mentioned that this petitioner and three others were present at the scene and threatened her with dire consequences. The said averment was also made in the complaint filed before the police. Only for the reason of the witnesses L.Ws.2 and 3 not mentioning the name of this petitioner, it cannot be a ground to not to prosecute this petitioner. Under Section 319 of Cr.P.C, the Court is at liberty to issue summons to any person whose complicity is prima facie found during the course of trial. It does not mean that all the witnesses have to be examined. It is sufficient that on the basis of any evidence of witnesses, if the court comes to a conclusion that such person ought to be summoned as an accused, such person can be summoned. Learned Magistrate has followed the procedure in accordance with Section 319 of Cr.P.C. It cannot be said that the order taking cognizance and summoning the petitioner is not in accordance with the procedure. The defence taken by the petitioner that she was not present at the scene and that she was present in the office can be agitated before the concerned court during trial.
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7. In view of above facts and circumstances, the petition is devoid of merits and the same is liable to be dismissed and accordingly dismissed.
8. However, keeping in view that the petitioner is a working women, her attendance is dispensed before the trial Court on all such dates when represented by a counsel. The petitioner shall appear before the concerned court on the dates which the learned Magistrate directs. Failure to appear before the Court in spite of directions, this order dispensing her attendance stands cancelled.
_________________ K.SURENDER, J Date: 11.11.2022 kvs 5 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.2212 of 2020 Dt.11.11.2022 kvs 6