Delhi High Court
Rani Soni @ Joginder Kaur Soni & Ors vs State on 22 September, 2011
Author: Suresh Kait
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2992/2011
% Judgment delivered on: 22nd, September,2011
RANI SONI @ JOGINDER KAUR SONI
& ORS ..... Petitioners
Through : Mr. Aman Mehta, Adv.
versus
STATE ..... Respondent
Through : Ms.Ritu Gauba, APP for State
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
SURESH KAIT, J. (Oral)
Crl.M.C.2992/2011
1. Vide the instant petition the petitioners have assailed
the impugned order dated 21.01.2011 passed by ld. MM,
South Delhi whereby ld. MM has passed the order as under :
"Accused are stated to be on
police/court.
I have perused the challan,
statements of witnesses and the
documents filed on record. Prima facie
there is sufficient material on record to
proceed with the case against all the
accused persons namely Navdeep Soni,
Rani Soni, Sandeep Soni and Dolly Soni.
Accordingly, the cognizance is taken
against all the accused persons u/s
498A/406/34 IPC.
Summons be issued to he accused
persons and notice to surety through IO
for 31.03.2011."
2. Ld. counsel for the petitioners submits that petitioners
were put in column 2 in the report filed under Section 173
Cr.P.C. before the ld. Magistrate.
3. Further submits that Navdeep Soni being the husband,
the charge-sheet was filed against him. Rest of three
accused namely, Rani Soni, Sandeep Soni and Dolly Soni
were put in column 2. Ld. MM has not recorded any
statement before summoning the three accused.
4. In support of argument, ld. counsel for the petitioners
has relied upon a judgment passed by this Court in
Crl.M.C.924/2005 titled as Atma Ram Singhal & Ors. Vs.
State & Anr. pronounced on 02.05.2007 on the similar
circumstances this Court has held as under :
"1. The respondent No.2 is the complainant,
who lodged complaint under Section 498-A/406 of
the Indian Penal Code (for short, 'IPC') against her
husband Anil Singhal as well as other relations.
This complaint was made to the ACP, Crime
Against Women (CAW) Cell, Pitampura. Thereafter,
an FIR was registered. Police, after investigation,
filed challan under Section 173 of the Code of
Criminal Procedure (for short, 'Cr.P.C.'). Names of
the petitioners herein were put in Column No.2 in
the said charge sheet. Complainant's husband,
father-in- law and mother-in-law were shown as
main accused. The relation of these petitioners,
who were put in Column No.2, with the
complainant's husband is as under :-
Petitioner No.1
"Uncle (chacha) of the complainant's
husband
Petitioner No.2
"Son of the petitioner No.1
Petitioner No.3
"Another uncle of the complainant's husband
Petitioner No.4
"Wife of the petitioner No.3
Petitioner No.5
"Daughter of the petitioner No.3
Petitioner No.6
"Son of the petitioner No.3
Petitioner No.7
"Another uncle of the complainant's husband
2. After the filing of the charge sheet, the
learned MM chose to summon all these petitioners,
who were shown as accused in Column No.2, by
passing the following order :-
"Present: APP for the State. Accused present
on bail.
IO SI Bhagwan Dass present. SI Bhagwan
Dass has given his explanation. I am not satisfied
with the explanation given by him in respect of
this specific allegation made in the complaint
itself. In these circumstances, as there are
sufficient grounds to proceed against the accused
shown at column no.2 they be summoned on
29.10.04.
Sd/-
MM/Delhi
30.6.04."
The petitioners, feeling aggrieved against
this summoning order, filed criminal revision
before the learned ASJ, which has been dismissed
by the learned ASJ vide order dated 19.2.2005.
Challenging this order, the present petition is filed
under Section 482 Cr.P.C.
..........................
5. It may be noted that the revision petition
was filed even by the father-in-law and mother-in-
law, along with the present petitioners, which was
dismissed by the learned ASJ. However, the
mother-in-law and the father-in-law of the
complainant have not joined these proceedings.
Perusal of the order passed by the learned ASJ
would show that after taking note of the argument
of the petitioners that the learned MM passed the
order without application of mind, which is not as
per the report prepared by the Police under
Section 173 of the Cr.P.C. This argument was
brushed aside only on the ground that the
Magistrate had the power to summon even those
persons whose names are placed in Column No.2
and case law is cited in support thereof. There
may not be any quarrel with this abstract
proposition of law. Power of the learned MM is not
in dispute. It is the manner in which the said
power is exercised was challenged. But there is no
answer to the argument that the impugned order
was without application of mind, having regard to
the report of the Police under Section 173 Cr.P.C.
6. Undoubtedly, the learned MM is not to act
mechanically on the basis of the report filed by the
Investigating Officer under Section 173 of the
Cr.P.C. and has to apply his own mind. He may
refuse to summon any of the persons named in
the charge sheet. On the other hand, if he finds
that there is prima facie evidence against those
whose names are mentioned in Column No.2, he
may even summon them along with others.
However, what is important is that there should be
depiction of application of mind in the order
passed. More so, when as per the report of the
Investigating Officer there is nothing against a
particular person but the MM still wants to
summon him. The learned ASJ, apart from stating
the legal position to the effect that the Magistrate
had the necessary power and dismissing the
revision petition on that ground, did not deal with
the argument of the petitioners herein to the
effect that the order of the trial court was non-
speaking order and even a semblance of reason
was not recorded as to what were the
considerations which persuaded the learned trial
court to summon these petitioners,
notwithstanding the fact that their names appear
in Column No.2."
5. In my considered opinion, whenever a final report
under Section 173 Cr.P.C. is filed for consideration by the
Magistrate, it gives rise to two situations. Firstly, that the
report may conclude that the offence appears to have been
committed by a particular person or persons. Secondly, that
in the opinion of the officer-in-charge, no offence appears to
have been committed. In the former case, i.e. where the
report discloses the commission of an offence, three courses
are open to the Magistrate viz. (a) he may accept the report
and take cognizance of the offence and issue process; (b) he
may disagree with the report and drop the proceedings; and
(c) he may direct further investigation.
6. Coming to the latter case where the report states that
no offence appears to have been committed, the Magistrate
has again three choices: (a) he may accept the report and
drop the proceedings; (b) he may disagree with the report
and take the view that there is sufficient ground to for
proceeding further, take cognizance of the offence and issue
process; and (c) he may direct further investigation to be
made by the police.
7. No doubt that even if the report discloses that no offence
appears to have been committed, the Magistrate may
disagree with the report and take a view that there is
sufficient ground for proceeding further, take cognizance of
the offence and issue process. However, the question to be
determined is as to when the MM decides to issue the
process, notwithstanding the observations of the
Investigating Officer; is he to indicate some reasons and
reflect his thought process in the order as to why he is taking
such a course.
8. In the present case, ld. MM has not considered any of
the fact against the three accused who were put in column 2
in the report filed by the police under Section 173 Cr.P.C.
Sufficient grounds should have been recorded by Ld. M.M.
for proceeding further against the persons, as they were not
charge-sheeted in the report u/s 173 Cr.P.C., before taking
the cognizance of the offence and issuing process.
9. Keeping in view above discussion, the impugned order
dated 21.01.2011 is set aside and the matter is remanded to
ld. MM. to consider the same afresh and pass appropriate
order.
10. Accordingly, Crl.M.C.2992/2011 is allowed in the above
terms.
11. Dasti.
Crl.M.A.10554/2011 (stay) & Crl.M.A.11298/2011
(early hearing)
In view of the order passed in Crl.M.C.2992/2011, these
applications are dismissed as infructuous.
SURESH KAIT, J
SEPTEMBER 22, 2011
Vld/RS
