Harbans Lal Khetrapal And Ors. vs Balbir Singh And Anr.
1986 Latest Caselaw 75 Del

JUDGMENT

Charanjit Talwar, J.

(1) By this petition, the petitioners Harbans Lal, Kapil Khetrapal and Mrs. Suniti, (son and wife respectively of the first petitioner) are challenging the order dated August 7, 1984 passed by Shri S.K. Kaushik, Metropolitan Magistrate, New Delhi, whereby the petitioners were summoned for an offence under Sections 3 and 6 of the Dowry Prohibition Act and also under Sections 384 and 406 Indian Penal Code read with Section 120-B of the Code.

(2) That order is a short one, it may be quoted "I have heard the learned counsel for the complainants gone through the evidence led by the complainants in support of their complaint and also considered the documents relied upon by them. I am satisfied that the complainants have made out a prima facie case against accused Harbans Lal Khetrapal, Mrs. Suniti Khetrapal and Kapil under Sections 3 and 6 of the Dowry Prohibition Act, 1961 and Section 384 and 406 Indian Penal Code read with Section 120-B. The learned counsel for the complainants has submitted before me that the accused persons are very influential persons and they will not obey the summons of the court and considering the fact that the case is friable by a warrant case, procedure therefore. Bailable warrants may be issued to compel their attendance on the next date of hearing. Heard. The BWs against all the three accused in Rs. 5000.00 be issued dusty for execution through District Magistrate, Bhopal returnable by 10/9/1984 on P.C. The copy of the complaint be also enclosed with the warrants."

(3) It appears that on coming to know that bailable warrants had been issued against them, petitioners appeared before the court on their own. Thereafter, the present petition was filed. Vide order of 18th December, 1984 Justice Malik Sharief-ud-din stayed the proceedings in the trial court. The minutes of proceedings show that in this court the petitioners vide application dated November 16, 1984 sought permission to file a number of documents in support of their plea that even prima-facie no case was made out against them. Those documents have been annexed as Annexure J to Q-1. I may notice that in this petition, further plea is that no ground, whatsoever, was made out for proceeding. In the view which I am taking I do not think that it is advisable for this court at this stage to discuss this case on merits. On the petitioner's own showing a number of documents have to be brought on the record. I may notice at this stage that learned counsel for the petitioners, Mr. K.K. Sud during arguments stated that even if those documents are not kept in view, there is no case made out against the petitioners on reading of the complaint.

(4) Mr. Sud wanted to raise a number of points which in my view, touch the merits of the case. The Supreme Court in Khacheru Singh v. State of U.P. and another, Air 1982 S.C. 784, in a similar case where an order of summoning of the accused had been challenged was pleased to set aside the order of the High Court of Allahabad whereby that order had been quashed. It was observed : "WE do not see any justification, though we are not expressing any opinion on the merits of the case, for the order passed by the learned Additional Sessions Judge, Meerut in Criminal Revision No. 83 of 1979, which was affirmed by the High Court of Allahabad by its order dated 7-5-1980. All that the learned Magistrate had done was to issue a summons to respondent No. 2 Satyavir Singh. If eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing 'summons' to the accused should be quashed. We, therefore, set aside the orders passed by the Sessions Court and the High Court restore that of the learned Special Judicial Magistrate, First Class, Meerut, dated February 2, 1979 and remit the matter to the trial court for disposal in accordance with law."

(5) Mr. Sud, learned counsel for the petitioner was wanting to refer to other judgments of the Supreme Court. According to him, in some latter judgments their Lordships' have held that it is open to the High Court while exercising its jurisdiction under Section 482 of the Code to quash the order of summoning or the proceedings initiated on filing of the complaint. One cannot have any quarrel with that proposition. On the facts and circumstances of this case, however, I am of the view that Khacheru Singh's judgment (supra) is applicable.

(6) While upholding the order of summoning I direct the learned magistrate to permit the petitioners therein, if they choose to do so, to file documents in support of their contention and proceed to admit and/or deny the said documents in accordance with Section 294 of the Code. Thereafter the pleas which have been raised in this petition can be raised by the petitioners on a written application. In that event, the parties be given a right of hearing and petition be decided in accordance with the law.

(7) The petitioners' counsel says that the petitioners were exempted from personal appearance. I am sure that on an application filed on behalf of the petitioners for this purpose, the learned court will examine the question favorably. With these observations the parties through counsel are directed to appear before the trial court on 24th February, 1986 for further directions. The application, if and when made on behalf of the petitioners for seeking discharge, as far as possible may be decided within 3 months of its filing. I am sure that after giving notice of that application the learned magistrate will decide the matter afresh.