Surendra Singh And Others vs State Of U.P.And Another
2011 Latest Caselaw 5364 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 45               RESERVED.
 

 
Case :- APPLICATION U/S 482 No. - 30585 of 2008
 

 
Petitioner :- Surendra Singh And Others
 
Respondent :- State Of U.P.And Another
 
Petitioner Counsel :- V.M. Zaidi
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Naheed Ara Moonis,J.

Heard the learned Senior Advocate Sri V.M. Zaidi assisted by Sri Sushil Shukla, learned counsel for the applicants, the learned counsel for the complainant, the learned A.G.A. and perused the record.

The applicants had challenged the order dated 29.9.2008 passed by the Additional Sessions Judge, Court no.1, Bijnor dated 29.9.2008 in Criminal Revision No. 95 of 2008 arising out of order dated 5.3.2007 passed by the learned Additional Chief Judicial Magistrate, Court No.1, Bijnor in Case No. 2487 of 2007 whereby the applicants have been summoned under Sections 498-A, 325, 504 and 506 I.P.C. and Section ¾ D.P. Act on an application moved by the complainant under Section 319 Cr.P.C.

The applicant no.1 is the brother-in-law, the applicant no. 2 is the married sister-in-law and the applicants 3 and 4 are unmarried sisters-in-law of the opposite party no. 2. According to the prosecution case the opposite party no. 2 had lodged a first information report against her husband and in-laws including the applicants on 21.5.2005 at 8.15 P.M. in respect of the incident occurred on 6.9.2003 when she was ousted from her house on account of non- fulfilment of the demand of dowry and was medically examined in the District Hospital by her father thereafter due to the intervention of the respected members of the village and the relatives the first information report was not lodged against them and when on 4.1.2005 she went to her matrimonial house along with her father he was brutally assaulted by them and broken his leg who was also medically examined in the District Hospital, therefore, an application was moved to lodge the first information report thereafter on the intervention of the police the first information report was lodged against the applicants and other in-laws of the opposite party no. 2. During investigation the charge sheet was submitted only against her husband Neeraj, father-in-law and mother-in-law, namely, Harpal and Smt. Vidwayati and the trial proceeded and the statement of the complainant was recorded on 16.10.2006 wherein she had disclosed the name of the applicants also that they had been involved in demand of dowry and assault and was beaten by them and when she was ousted they were also present at the time of the incident. Thereafter the complainant moved an application under Section 319 Cr.P.C. on the same day stating therein that the Investigating Officer has not investigated the case in a fair manner and submitted the charge sheet only against the husband, father-in-law and mother-in-law, though they were already named in the first information report, therefore they are also liable to be summoned to face the trial.

The learned Magistrate by order dated 5.3.2007 after the examination-in-chief of the complainant P.W.1 has observed that all the applicants have been categorically mentioned in her statement and as such they are also liable to be summoned to face the trial and as such issued summons against the applicants for their appearance on 10.4.2008. The applicants aggrieved by the aforesaid order preferred a revision before the learned Additional Sessions Judge, Court No.1, Bijnore and the lower appellate court had rejected the revision by order dated 29.9.2008. The applicants preferred the present 482 Cr.P.C. petition and this court vide order dated 6.11.2008 referred the matter for mediation and it was connected with Criminal Misc. Case No. 26907 of 2008. The aforesaid criminal misc. application was filed against the summoning order dated 20.6.2007 passed under Section 406 I.P.C. and Section 6 of the D.P. Act by the Additional Chief Judicial Magistrate, Court No.1, Bijnor in complaint Case No. 1687 of 2007 where the husband, mother-in-law and the two unmarried sisters-in-law were summoned to face the trial. Both the petitions were arising out of the matrimonial dispute and as such the matter was referred for mediation for amicable settlement but before the Mediation Centre the applicants did not appear while the complainant/opposite party no.2 remained present on the date fixed and as such the mediation was failed on 13.1.2009.

It is vehemently argued by the learned counsel for the applicants that the power exercised by the learned Magistrate in summoning the applicants under Section 319 Cr.P.c. in respect of offence under Sections 498-A, 325, 504 and 506 I.P.C. and Section ¾ D.P. Act suffers from manifest error of law. The entire family has been roped in the present offence only on the basis of the examination-in-chief recorded by the court below of the complainant/opposite party no.2. The examination-in-chief is no evidence the court below has merely on the basis of the examination-in-chief of the P.W.1 the opposite party no.2 arrived at the conclusion that prima facie offence is made out against the applicants who are none other than the married sister-in-law and unmarried sisters-in-law who have nothing to do with the demand of dowry or torture meted to her. The married sister-in-law along with her husband applicant no.1 are residing separately in different village and as such they cannot be said to be benefited by the demand, if any, made by her husband. The unmarried minor sisters-in-law of the opposite party no.2 they have also been roped in falsely. After collecting evidence the Investigating Officer had submitted the charge sheet only against the husband and father-in-law and mother-in-law and merely on the basis of the examination-in-chief of the opposite party no.2 the court below has arrived at the conclusion that the applicants were also involved in the commission of the offence. The opposite party no.2 had also lodged a frivolous complaint under Section 406 I.P.C. and section 6 of the D.P. Act whereby the husband and the mother-in-law and father?in-law and the minor sisters of the opposite party no.2 have been summoned by the court below and the said proceeding was challenged before this court whereby this court had stayed the proceedings in the aforesaid case and the matter was referred to mediation.

The learned counsel for the applicants had relied upon the decision of the Apex Court in the case of Sarabjeet Singh and another Vs. State of Punjab and others reported in 2009 (3) JIC 5225 and has contended that the power under Section 319 Cr.P.C. is required to be exercised sparingly and if compelling circumstances exist for taking cognizance against whom action has not been taken sufficient and cogent reason has to be assigned by the court so as to satisfy the ingredients of the provision and the evidence must be convincing for the purpose of exercise of the extraordinary power under Section 319 Cr.P.C. The Hon?ble Court has set aside the order of the trial court and remitted the matter to the learned Sessions Judge for consideration afresh. In Sarabjeet Singh and another (supra) the decision of the Apex Court in Hardeep Singh was also considered in which the matter was referred to Larger Bench in respect of two questions, question no.1 when the power under sub-section 1 of Section 319 Cr.P.C. addition of accused can be exercised by a court, the question no.2 whether under Section 319 Cr.P.C. is not maintainable unless the cross examination of the witness is complete. What is test and what are the guidelines for exercise of power under sub-section 1 of Section 319 Cr.P.C. where such power can be exercised only if the court is satisfied that the accused summoned in all likelihood would be convicted. The matter which has been referred to Larger Bench no subsequent principle has been laid by the Apex Court nor above reference has been decided so far.

The proposition of law relating to the quashing of the proceedings at the initial stage in 482 Cr.P.C. petition has been well considered by the Apex Court in the decision of Indian Oil. The Apex Court has laid down certain preposition of law, which may be kept in mind while exercising the jurisdiction under 482 Cr.P.C. it emphasizes in the case of Indian Oil Corporation Vs. NEPC India Limited 2006 (6) SCC 736 has observed as under:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the case allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. the power should be used sparingly and without abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only whether the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

In R.P. Kapur Vs. State of Punjab reported in A.I.R. 1960 SC page 866 the Apex Court had culled out three categories where the criminal proceedings can be quashed, they are;

(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) Where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

The Apex Court in the case of Sushil Kumar Sharma Vs. Union of India reported in A.I.R. 2005 SC 0-3100 has held wherein it was prayed to declare Section 498-A I.P.C. to be unconstitutional and ultra vires so that innocent persons are not victimised by unscrupulous persons making false accusation and while considering every aspect of the provision the Apex Court has held that if the petitioner wants to prove his innocence he can do so in the trial if held. Mere possibility of abuse of provision of law does not per se invalidate legislation.

Per contra learned counsel for the opposite party no.2 has contended that the order passed by the Judicial Magistrate summoning the accused applicants under Section 319 Cr.P.C. is in consonance with law, which was affirmed by the Additional Sessions Judge who was satisfied that the order passed by the learned Judicial Magistrate suffers from no error and such an order cannot be reviewed. The first information report was registered against the applicants and other accused persons but the charge sheet was submitted only against the husband and father-in-law and mother-in-law of the opposite party no.2 though the involvement of the applicants were very much stated right from the beginning and it is absolutely wrong to say that at the time of the incident they were not present and residing separately. The applicants had approached this court the matter was referred for mediation and the mediation has also failed the disputed defence of the applicants cannot be considered at this stage and the case law cited by the learned counsel for the applicants is of much later stage. The learned Magistrate after considering the evidence of the opposite party no.2 held that prima facie case has been made out against the applicants and they should also be joined as accused and hence the application was allowed and summons were issued. The power under Section 319 Cr.P.C. can be exercised either on the application made to the court or by the court suo motu and it is the discretion of the court to take action under Section 319 Cr.P.C. and on the basis of the examination-in-chief arrived at the conclusion that they may also be summoned as prima facie offence is made out against them and as such there is no illegality committed by the court below as the mediation has already failed and as such the petition has no merit and both the petitions are liable to be dismissed.

Having considered the submissions of the learned counsel for the parties and in the light of the judicial pronouncement to which the attention of the court has been invited it is necessary to mention the relevant provision of law. Section 319 Cr.P.C. reads thus;

"319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trail of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then?

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

In view of the aforesaid provisions the primary object underlying is that the whole case against the accused should be tried and disposed of not only expeditiously but also simultaneously and cognizance against the newly added accused should be taken in the same case and in the same manner as against the original accused. It does not prescribe any time limit within which such application should be filed in the court and the power to add any person not being an accused but against whom there appears during trial sufficient evidence indicating his involvement in the offence as an accused may be directed to be tried along with the other accused. The word evidence contemplates that the evidence of witness given in court under Sub-section 4 (1) (b) of Section 319 Cr.P.C. it is specifically made clear that it will be presumed that newly added persons had been an accused person when the court took cognizance of the offence upon which the enquiry or trial was commenced that would show that by virtue of Sub-section 4 (1) (b) a legal fiction created that cognizance would have been taken so far as the newly added accused is concerned. There is no absolute restriction that only on the basis of evidence in examination-in-chief if it discloses prima facie case an accused cannot be summoned under Section 319 Cr.P.C. the witness is cross examined. The very purpose of indicating Section 319 (1) Cr.P.C. clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence that comes before the criminal court are included in the impression ?any person? not being the accused. The court is satisfied on the basis of examination-in-chief of a witness that a person not shown to be an accused but have committed an offence it can exercise the power under Section 319 Cr.P.C. In the instant case this court had granted indulgence by referring the matter to the mediation centre to give them liberty to settle their dispute but no settlement arrived at between them and the mediation has also failed long back, therefore, there is no justification to keep the matter pending to install the trial for indefinite period, which is defeating the very purpose of speedy trial. So far as the summoning order passed against the father-in-law, mother-in-law and the husband is concerned under Section 406 I.P.C., which has been passed after recording the statement of the complainant and the witnesses that the applicants withheld the articles given to the opposite party no. 2 at the time of marriage and was ousted was disposed of by order dated 21.7.2009. Therefore, the prayer for quashing the proceedings under Sections 498-A, 325, 504 and 506 I.P.C. and Section 3/4 D.P. Act is refused. The instant petition has no merit and is accordingly dismissed and the interim order granted by this court is hereby vacated. The parties are directed to appear before the court concerned to face the trial. The court below is expected to proceed with the case as expeditiously as possible in accordance with law.

Order Date :- 21.10.2011

Shahnawaz