Pawan Kumar Yadav & Ors. (Comp. ... vs State Of U.P. & Another
2013 Latest Caselaw 5176 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                                                           									 	AFR
 
 Reserved
 
                                                                            
 
                    High Court of judicature at Allahabad,
 
                               Lucknow Bench, Lucknow
 
			        
 

 
  Criminal Miscellaneous case No. - 5295 of 2012
 
  (U/s 482 Cr.P.C.)
 

 
1.	Pawan Kumar Yadav, aged about 25 years, (Husband)
 
2.	Arvind Kumar Yadav, aged about 20 years, (Devar) 
 
     	Both are sons of Sri Gangaram, 
 
3.	Mithlesh Kumari, aged about 21 years, daughter of Sri 	Gangaram (Nanad).
 
4	Sunita Devi, aged about 48 years, wife of Sri Gangaram 	(Saas).
 
5.	Gangaram, aged about 50 years (sasur)
 
6.	Gayadeen, aged about 46 years, (Chachiya Sasur)
 
     	Both are sons of Late Phallan, 
 
7.	Shobhawati, aged about 44 years, wife of Sri Gayadeen, 	(Chachiya Saas)
 
8.	Ashok Yadav, aged about 23 years (Devar)
 
9.	Vikas Yadav, aged about 20 years (Devar)
 
10	Suman, aged about 25 years, Daughter of Sri Gayadeen 	(Nanad) 
 
11.	Urmila, aged about 23 years, wife of Sri Kashiram (Nanad)
 
         All are residents of Village-Bibiyapur, Police Station-Mahrajganj, District-Faizabad.
 
                       ..................... Applicants/Petitioners
 
                                            Vs.
 
1. 	State of U.P.  
 
2.Smt. Geeta Devi, Daughter of Rajbali Yadav, wife of Sri Pawan Kumar Yadav, resident of Village & Post Avsanpur Purwa Baroiya, Police Station Ibrahimpur, District Ambedkar Nagar            									                ....................... Opposite Parties
 
 
 
Counsel for Applicant :- Sri Prabhu Ranjan Tripathi, Mrs. Sanju Tripathi, Advocate. 
 
Counsel for Opposite Party :- Sri Anurag Verma, AGA and Sri G.M. Kamil, Advocate for opposite party No.2.
 

 
Hon'ble Vishnu Chandra Gupta, J.

Judgement

1.This petition under section 482 of Criminal Procedure Code (for short 'Cr.P.C.') has been filed for quashing the order dated 23.05.2012 passed by Additional District Judge, Court No.1, Ambedkar Nagar, in Criminal Revision No. 86 of 2010 and order dated 13.4.2010 passed by judicial Magistrate, Tanda, District Ambedkar Nagar, arising out of case No.940/2009 under sec.498-A,323,504,506 IPC and sec.3/4 of Dowry Prohibition Act, P.S.-Ibrahimpur, District-Ambedkar Nagar,

2.The brief facts for deciding the present petition are that Smt. Geeta Devi, Opposite party No.2 filed an application under Section 156(3) Cr.P.C against the petitioners, and one Phallan in the court of Additional Judicial Magistrate, Tanda, District Ambedkar Nagar with allegations that she is the wife of Pawan Kumar Yadav (Petitioner No.1) who according to Hindu rites married with her on 31.3.2005 in Village Absanpur Purva P.S. Ibrahimpur District Ambedkar Nagar. The Gauna of opposite party No.2 took place on 13.5.2006. In Gauna, Pawan Kumar, his father Ganga Ram (Petitioner No.5), grandfather Phallan Yadav (since deceased), Uncle Gayadin (Petitioner No.6), younger brothers Arvind Yadav (Petitioner No.2), Ashok Yadav (Petitioner No.8) and Vikas Yadav (Petitioner No.9) demanded motorcycle, fridge, T.V., and Rs.50,000/- cash. However on request made and to make them understand they took O.P.No.2 with them in her Saural where she remain for a week with her husband. During this period aforesaid petitioners and mother-in-law Smt. Sunita (Petitioner No.4), Chachrei Sas Smt Sobhawati (Petitioner No.7), Nanad Mithlesh Kumari, Suman Devi, Urmila Devi (Petitioner Nos.3, 10 and 11 respectively) and others start taunting, harassing and treating her with cruelty on account of demand of dowry. She came back from Sasural and thereafter she visited her Sasural 3-4 times. All the above mentioned in-laws during the aforesaid period treated her with cruelty by not giving proper food, proper treatment in illness and also by beating her. They did not mend despite making request by her parents not to do such acts with her. She was expelled on 20.01.2009 from her Sasural in bearing cloths after beating her and after taking her all belongings. She was left near her village in Maruti car by Husband, his father, uncle, brothers Arvind Kumar, Ashok Kumar, Vikas and others. They told that unless their demands are fulfilled she will not be kept and Pawan shall remarry. The parents and relatives of O.P.No.2 went to her Sasural and try to make them understand the problems but in-laws did not pay any head to it.

3.On 12.07.2009 she along with her near relatives went to her Sasural with Marshal Jeep but in-laws did not change their stand of demands and did not permit her to enter in Sasural and try to assault her and her relatives. She anyhow managed her escape and came back to her parental house.

4.In marriage her father gave Rs. 75,000/- cash, almira of Godrej, Double bed, Gold Rings, about 250 small and big utensils, fan, cooler, gas stove,swing machine, cloths and other items.

5.She went to police station and approached high ups of police but her report was not lodged. Thereafter she take recourse of moving application under section 156(3) Cr.P.C.

6.The application under section 156(3) Cr.P.C. was treated as complaint and after conducting the enquiry under chapter XV of Cr.P.C. Learned Magistrate summoned the petitioner and Phallan Yadav under section 204 Cr.P.C. to face the trial under section 498-A, 323, 504 and 506 I.P.C. and Section 3 r/w section 4 of Dowry Prohibition Act vide order dated 13.4.2010, Annexure-2 to petition. This order dated 14.3.2010 challenged by the petitioners before sessions court in criminal revision No. 86 of 2010. This revision was also dismissed by order dated 23.5.2012.

7.Both these orders and proceedings of criminal case arising out of the complaint of O.P. No.2 having complaint case no.990 of 2009 were sought to be quashed in this petition.

8.Notice has been issued to O.P.No.2. She in spite of service and engaging the counsel Sri Gulam Mohd. Kamil, Advocate did not prefer to file any counter affidavit .

9.Heard the learned Counsel for the parties and learned AGA.

10.The learned Counsel for the petitioners challenged both the order on the ground of non application of mind by Learned Magistrate as well as by Court of revision for the following reasons;

(a) Phallan Yadav, the grand father of petitioner No.1 was admittedly dead on the date of passing the summoning order by the Magistrate as is evident from the statement of complainant recorded under section 200 Cr.P.C., wherein she admitted that Phallan has already dead. Despite it not only the Magistrate has summoned the dead person but also the Court of revision ignored the same defect in summoning order.

(b) That in this case accused/petitioners are resident of district Faizabad as shown in the complaint and complaint was filed in the district Ambedkar Nagar. In view of amended provision of Section 202 Cr.P.C. which are mandatory in nature, the non compliance shall vitiate the impugned order summoning the accused petitioners. In this regard he relied upon the judgement of the Apex Court in National Bank of Oman v. Barakara Abdul Aziz,(2013) 2 SCC 488,

(c) That whole family including married, unmarried sisters of husband, father, grand father, uncle, aunt were summoned without assigning any good reason specially when no specific role has been assigned to any of the petitioner and only general allegations made in such type of cases would not be sufficient to summon the accused persons. The Magistrate should keep in mind that false implication of unconnected family members is common features as observed by the Apex Court in Geeta Mehrotra and another Vs. State of U.P. and another reported in 2012(10) SCC 741

(d)That no injuries said to have been caused to the opposite party No.2.

(e)Witness Ram Bachachan is not the resident of the village where the petitioner resides or accused person resides. No source of giving the evidence on oath has been disclosed by him hence his evidence cannot be taken inti consideration to summon the accused persons.

(f) That petitioner Ganga Ram, the father of petitioner No.1 was working in MTNL Bombay but he was also dragged in the case. The married sisters and living separately with the family, the petitioner No.3, 10 and 11 respectively, have also dragged into litigation with intent to harass them. Petitioner No.6 to 11 also residing separately but they were also made accused.

11. The provisions of section 202(1) Cr.P.C. are quoted herein below;

"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 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 officeror by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficent 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 court of sessions; or

(b) where the complainant has not been made by a court,unless the complainant and witnesses present (if any) have been examined on oath under section 200."

* Inserted by Act No.25 of 2005, sec.19(w.e.f. 23.6.2006)

12. The Hon'ble Supreme Court in a recent pronouncement in National Bank of Oman v. Barakara Abdul Aziz (2013) 2 SCC 488, at page 492 observed :

"9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.

10. Section 202 CrPC was amended by the Code of Criminal Procedure (Amendment) Act, 2005 and the following words were inserted:

"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,"

The notes on clauses for the abovementioned amendment read as follows:

"False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused."

The amendment has come into force w.e.f. 23-6-2006 vide Notification No. S.O. 923(E) dated 21-6-2006.

11.We are of the view that the High Court has correctly held that the above mentioned amendment was not noticed by the CJM, Ahmednagar. The CJM had failed to carry out any enquiry or order investigation as contemplated under the amended Section 202 CrPC. Since it is an admitted fact that the accused is residing outside the jurisdiction of the CJM, Ahmednagar, we find no error in the view taken by the High Court."

13.The question for consideration before this Court is;

While discharging its obligation under this mandatory provision court how to act?

14. The perusal of provision give discretion to Magistrate either to enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit. The enquiry contemplated prior to insertion of this provision was limited to the ascertainment of truth or falsehood of the allegations made in the complaint:

(i)on the materials placed by the complainant before the court;

(ii)for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all averting to any defence that the accused may have.

15. The insertion of provision was intended to put a safe guard to those proposed accused who are not residing in the territorial jurisdiction of the Court. The legislature found that false complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.

16. To fulfil the intention of statue the Magistrate before issuing process after invoking this provision should satisfy himself that the complaint filed against the person residing out side jurisdiction of the court is not for his harassment. How the magistrate satisfy himself must reflect from proceedings conducted by him. Therefore, a conscious decision has to be taken. Specific order is required to be passed regarding postponement of issuing process and and for initiation of enquiry either by himself or ordering investigation, as the case may be. If the Magistrate decided to enquire himself he should put necessary questions with the witnesses and also to the complainant, like; identity of accused, acquaintance of complainant and witness with the accused , relationship in between accused and complainant and in between complaint and witnesses etc.

17. If Magistrate decide to order investigation than purpose of investigation and person to whom investigation is entrusted should be clearly mentioned by giving a reasonable time to complete the investigation. It is also important to note that this investigation under section 202 Cr.P.C. is different with the investigation under section 156 Cr.P.C. Therefore, Magistrate to ensure before ordering investigation that investigating officer or any other person shall not be allowed to arrest the accused in such investigation. The Magistrate shall also keep in mind the provisio added to sub-section(1) of section 202, which deals with cases wherein investigation could not be directed.

18.In the present case, it is not reflected from the proceedings that learned Magistrate has exercised its jurisdiction to comply this mandatory provision, rather he acted recklessly in summoning the accused person which is evident from its order. The learned Magistrate also summoned the dead person Phallan vide order dated 13.4.2010, who was admittedly dead on the date of recording the statement of complainant under section 200 Cr.P.C. The fact of death was admitted by the complainant in her statement.

19.It is strange that this fact has not been noticed by the revisional court and out rightly rejected the revision. This show that revisional court has also not looked into the record of the case before passing the impugned order and acted recklessly and negligently in dismissing the revision as a whole. Summoning persons to face the trial is serious thing because the liberty of that person would be involved and it should not be taken lightly and specially in those case where the accused resides outside the jurisdiction of the court and also in those cases which are related to matrimonial dispute in which possibility of false implication cannot be ruled out..

20.In Geeta Mehrotra's case (supra) this fact has been observed that in para 20 at page 749 (2012 (10)SCC 741);

"20.Coming to the facts of this case, when the contents of the F.I.R,. is perused, it is apparent that there are no allegations against Kumari Geeta Mehortra and Ramji Mehrotra except casual reference of their names who have been included in the F.I.R. But mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the house hold in the domestic quarrel taking place in a matrimonial dispute socially if it happens soon after the wedding."

21. In Uday Shankar Awasthi Vs. State of Uttar Pradesh and another reported in 2013 (2) SCC 435 the Apex Court after considering the judgement in National Oman Bank's case (supra) and also keeping in view the judgement in Shivjeet Singh Vs. Nagendra Tiwary (2010) 7 SCC 578 has observed that non-compliance of the mandatory provisions of Sections 202 Cr.P.C., where the accused reside in area beyond the territorial jurisdiction of Magistrate concerned, would be fatal to the proceedings and if accused person were summoned violating the aforesaid mandatory provision the proceeding ought to be quashed.

22. I have considered the above facts and circumstances of the case, the impugned order dated 13.04.2010 passed by the learned Magistrate summoning the petitioner and revisional order dated 23.05.2012 are liable to be set aside. Consequential proceedings initiated in pursuance of the order dated 13.04.2010 are also liable to be quashed .

23. Consequently, the petition is allowed . The impugned order dated 13.04.2010 and 23.05.2012 are set aside. The consequential proceedings initiated in pursuance of summoning order dated 13.04.2010 are also quashed. The matter is remanded back to the learned Magistrate to decide the proceeding afresh in accordance with law after hearing the opposite party No.2.

Order date: 23.08.2013

Ajay