Santosh And 5 Others vs State Of U.P. And Anr.
2022 Latest Caselaw 2156 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 

 
Case :- CRIMINAL REVISION No. - 684 of 2019
 

 
Revisionist :- Santosh And 5 Others
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Afaq Zaki Khan
 
Counsel for Opposite Party :- Govt. Advocate,Anil Kumar Tiwari,Raghvendra Singh
 

 
Hon'ble Brij Raj Singh,J.

Heard Sri Afaq Zaki Khan, counsel for the revisionists, Sri Anil Kumar Tiwari, counsel who appeared on behalf of the opposite party No. 2 and Ms. Zeba Islam Khan, learned A.G.A. for the State and perused the record.

The instant revision has been preferred with a prayer to summon the lower court record and set aside the judgment and order dated 04.05.2019 passed by Additional Sessions Judge, Court No. 3, District Sitapur, in S.T. No. 25 of 2019, (State Vs. Nakul and Others), Crime No. 283 of 2018, under Sections 498A, 304-B I.P.C. and Sections 3/4 of the Dowry Prohibition Act.

The revisionists have been summoned under Section 319 Cr.P.C. on the application given by the complainant. The complainant was examined as P.W. -1 and in her statement she has specifically stated that her daughter was married with Nakul as per Hindu rites. She further stated that as per her capacity, she had provided dowry but when the daughter went to the house of her husband, the accused revisionists demanded for additional dowry and this fact was already informed to her by the daughter. On receiving such information from her daughter, the complainant went to her in-laws house and there she was asked to fulfill demand of additional dowry in the shape of motorcycle, T.V., fridge and golden chain. In her statement she has already mentioned that on the date of marriage the said demand was made but howsoever the marriage took place at that time. She further deposed in her examination in chief that in the night, she was informed that her daughter Lalli was killed by in laws. She went to the house of her daughter but all the accused had ran away from the place of occurrence. She has levelled specific allegation of dowry demand against all the accused. It has also come on record that all the accused were named in the F.I.R. but however, the I.O. did not file charge sheet against the accused. When the trial began, P.W.-1 appeared before the Court and deposed all the factual aspects. On the basis of the statement and application filed by the complainant (P.W.-1), the trial court has summoned the accused revisionist under Section 319 Cr.P.C.

Counsel for the revisionists has relied upon a judgment rendered by Hon'ble Supreme Court in Ramesh Chandra Srivastava Vs. State of U.P. and Another [Criminal Appeal No. 990 of 2021 (arising out of SLP (Crl.) No. 6381 of 2020), decided on 13 September 2021] and submitted that the Supreme Court while dealing with the aforesaid case upheld the relevant observations made in Hardeep Singh Vs. State of Punjab and Others (2014) 3 SCC 92 to support the case of the revisionists. The relevant portion in Hardeep Singh (supra) is extracted hereunder:

"105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."

The court below has overlooked the provisions of Section 319 Cr.P.C. and the evidence on record. He has also invited the attention of the Court to submission that since the statement of cross examination of P.W.-1 and certain discrepancies in the statement of P.W. -1 has been pointed out by him and on that score, he submitted that it is not a strong case for more than the prima facie case so as to summon the revisionists under Section 319 Cr.P.C.

After going through the statement of P.W. -1 and other material on record, it is admitted case that just after two days of the marriage, the deceased Lalli died in the house of the accused revisionists and thus the case falls under Section 304-B I.P.C.

In reference to the case in hand, Section 113-A of the Evidence Act, is also relevant to be seen which reads as under:

"113A. Presumption as to abetment of suicide by a married woman.?When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

Similarly, Section 304-B of I.P.C. is also relevant to be mentioned which reads as under:

"304B. Dowry death.?(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death."

Thus, after looking into the provisions enshrined in the aforementioned two sections, I am of the view that all these revisionists are near relatives of the husband and at the moment, the Court cannot presume that they have not committed offence and I cannot do mini trial which will be looked into by the court below. In view of the aforesaid, the order passed by the court below needs no interference.

The revision is consequently dismissed.

After the revision was dismissed, counsel for the revisionists submitted that the revisionists may be permitted to surrender before the court below and apply for bail.

It is therefore, directed that in case the revisionists surrender before the court below within one month from today and prefer bail application, the court below will decide the said bail application as expeditiously as possible, preferably within a period of one month. It is further provided that while deciding the bail application of the revisionists, the court below will take into account the law laid down by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Another passed in Special Leave to Appeal (Crl.) No(s). 5191 of 2021 on 07.10.2021 and decide it in accordance with law.

Order Date :- 6.5.2022

Arun K. Singh