in compliance of that order without applying his mind summoned the accused by the impugned order is also not justified: Allahabad HC

Generally, the husband is only responsible for security, welfare and maintenance but the practice is that all family members were implicated in this case even no over act has been assigned to in-laws. The Hon’ble Apex Court in case of Geeta Mehrotra and another vs. State of U.P. and another, 2012 Law Suit (SC) 716 held that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses 8 commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
AFR RESERVED
Court No. – 44
Case :- CRIMINAL REVISION No. – 3704 of 2004
Revisionist :- Arun Kumar Sharma And Others
Opposite Party :- State Of U.P. And Another
Counsel for Revisionist :- Brij Raj Singh
Counsel for Opposite Party :- Govt.
Advocate,A.Singh,J.N.Singh,M.Ali,S.C.Verma
Hon’ble Amar Singh Chauhan,J.
The revisionists Arun Kumar Sharma and seven others
have preferred this criminal revision against the order dated
15.6.2004 passed by the Chief Judicial Magistrate, Kannauj in
Complaint Case No. 2603 of 2003 (Munshi Lal vs. Arun Kumar)
whereby the revisionists have been summoned under sections
498A, 323, 504, 506 IPC and 2/3 Dowry Prohibition Act, 1961 in
pursuance of remand order passed by the Special Judge, SC/ST
Act, Kannauj in Criminal Revision No. 22/14/2002 (Munshi Lal vs.
State of U.P. and 7 others).
The facts which are requisite to be stated for adjudication
of this revision are that complaint was filed with the allegation
that marriage of the revisionist no. 1 Arun Kumar Sharma was
solemnized with the daughter of opposite party no. 2 according
to Hindu rites and rituals. As per status, sufficient dowry was
given but the husband and in-laws were not satisfied with this
dowry and used to harass his daughter by raising demand of
motorcycle and fridge in dowry. On non-fulfillment of dowry, they
poured kerosene oil on his daughter and obtained signature from
his daughter on a blank paper. They also extended threat to
cause death of his daughter. The husband and in-laws ousted his
daughter after doing Marpeet. On receiving information, he
2
fetched her daughter from in-laws’ house to Bharapur and got
medically examined of his daughter.
After hearing the complainant and perusing the statement
under sections 200 and 202 Cr.P.C. the Additional Chief Judicial
Magistrate, Kannuaj comes to the conclusion that there is no
sufficient material to proceed against the revisionists and,
therefore, the complaint was rejected under section 203 Cr.P.C.
against which revision was filed by the complainant. The
Revisional Court allowed the revision assuming the jurisdiction of
the Trial Court and directed the Chief Judicial Magistrate to
summon the revisionists under sections 498A, 323, 504, 506 IPC
and 2/3 Dowry Prohibition Act. In compliance of the order of the
Revisional Court, the Chief Judicial Magistrate, Kannauj
proceeded further with the case and summoned the revisionists
to face trial.
Feeling aggrieved, revisionists came up before this Court
in this revision.
Heard learned counsel for the parties, learned AGA for the
State and perused the record.
Learned counsel for the revisionists submitted that the
summoning order was passed in a mechanical way without
applying his mind because the learned Magistrate at the first
instance when the complaint was filed before him and the
statement was recorded of the complainant and in support other
witnesses came to the conclusion that no prima facie case is
made out with the result that complaint was rejected under
section 203 Cr.P.C against which revision was filed. The Special
3
Judge in revision assumed the jurisdiction of the Trial Court and
issued direction to summon the revisionists under sections 498A,
323, 504, 506 IPC and 2/3 Dowry Prohibition Act. It is further
submitted that revisionists have neither demanded dowry nor
subjected to cruelty or torture for demand of dowry. The Special
Judge has exceeded his jurisdiction by directing the Trial Court to
summon the accused instead of remanding the case with the
direction to pass an appropriate order in the light of reasoning
given in the body of the judgement. It is also submitted that
entire family members including father, mother, brother, sister
have been falsely implicated even the relative Fufa, has no
concern at all, has been made accused in this case whereas no
specific role has been assigned to them.
Per contra learned counsel for the complainant contends
that the Judicial Magistrate-Ist Class, Kannauj illegally and
arbitrarily dismissed the complaint by order dated 06.04.2002
without considering the entire facts and evidence available on
record. The Revisional Court rightly allowed the criminal revision
and summoned the revisionists for facing trial under sections
498A, 323, 504, 506 IPC and 2/3 Dowry Prohibition Act.
In this revision, the main point of determination is that
whether there is sufficient material to proceed against the
revisionists and revisional court can assume the power of the
trial court and straightway can give direction to summon the
accused rather to remand for disposal afresh.
Before averting to the claim of the parties, it is useful to
quote the provision of section 203 and 204 Cr.P.C.
4
203. Dismissal of Complaint:- If, after considering the
statements on oath (if any) of the complainant and of the
witnesses and the result of the inquiry or investigation (if
any) under section 202, the Magistrate is of opinion that
there is no sufficient ground for proceeding, he shall dismiss
the complaint, and in every such case he shall briefly record
his reasons for so doing.
204. Issue of process:- (1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks
fit, a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself), some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any processfees
or other fees are payable, no process shall be issued
until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 87″.
The expression “sufficient ground” in section 203 Cr.P.C.
points exclusively to the facts which the complainant brings to
the knowledge of the Magistrate for establishing a prima facie
case against the suspected accused. The decision whether there
is sufficient ground must be reached by the exercise of discretion
5
based upon judicial consideration. A Magistrate may dismiss a
complaint (a) if he finds that no offence has been committed
upon the statement of the complainant; (b) if he distrust the
statements by the complainant, and (c) if he finds that there is
no sufficient ground for proceeding.
Relative scope of sections 203 and 204 Cr.P.C. was noticed
and considered by Hon’ble the Supreme Court in Pepsi Foods
Limited and another Vs. Special Judicial Magistrate and
others (1998) 5 SCC 749 and held as under:
“Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two
witnesses to support his allegation in the complaint to have
the criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto.
He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in
support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at
the time of recording of preliminary evidence before
summoning of the accused. Magistrate has to carefully
scrutinize the evidence brought on record and may even
himself put questions to the complainant and his witnesses
to elicit answers to find out the truthfulness of the allegations
or otherwise and then examine if any offence is prima facie
committed by all or any of the accused.”
The Bombay High Court in case of Vithal Vinayak
Bhuskute and another vs. Narhari Pandurang Gandale
and another, 1995 CRI.L.J. 3733 has held that sufficiency or
insufficiency of the material for issuing the process is for the
6
Court which is seized of the matter to decide. The learned
Additional Sessions Judge was not well advised to comment that
the material taken into consideration by the learned Magistrate
was not sufficient for issuing the process. He was further in error
in dismissing the complaint. Even if he had found that the
material was not sufficient, the learned Additional Sessions
Judge could have sent back the matter to the learned Magistrate
to reconsider his decision and pass a fresh order for issuing the
process to the accused. He, in no event, could dismiss the
complaint. The order of the learned Additional Sessions Judge
dismissing the complaint cannot be justified in law.
In the case in hand, the Chief Judicial Magistrate has
passed the summoning order in compliance of the order passed
by the Revisional Court. The Magistrate did not apply his mind.
The Magistrate should show that on what material he has issued
the process but in the impugned order the requisite factors,
which are to be considered by the CJM, are lacking. For issuing
the process against the accused, it has to be only seen whether
prima facie case has been made out. The Magistrate is not
required to go deep into the probative value of material on
record. The Magistrate before issuing process against the
accused must exercise his judicial mind to the facts of the case
and law applicable thereto. The Court is not required to assess
the evidence and consider the probabilities or improbabilities of
the version of the complaint and or evaluate the sworn
statement of the complainant or witness. The Magistrate under
law at this stage is not permitted to embark upon meticulous
7
examination of the evidence or material.
Generally, the husband is only responsible for security,
welfare and maintenance but the practice is that all family
members were implicated in this case even no over act has been
assigned to in-laws. The Hon’ble Apex Court in case of Geeta
Mehrotra and another vs. State of U.P. and another,
2012 Law Suit (SC) 716 held that we may not be
misunderstood so as to infer that even if there are allegations of
overt act indicating the complicity of the members of the family
named in the FIR in a given case, cognizance would be
unjustified but what we wish to emphasize by highlighting is
that, if the FIR as it stands does not disclose specific allegation
against accused more so against the co-accused specially in a
matter arising out of matrimonial bickering, it would be clear
abuse of the legal and judicial process to mechanically send the
named accused in the FIR to undergo the trial unless of course
the FIR discloses specific allegations which would persuade the
court to take cognizance of the offence alleged against the
relatives of the main accused who are prima facie not found to
have indulged in physical and mental torture of the complainantwife.
It is the well settled principle laid down in cases too
numerous to mention, that if the FIR did not disclose the
commission of an offence, the court would be justified in
quashing the proceedings preventing the abuse of the process of
law. Simultaneously, the courts are expected to adopt a cautious
approach in matters of quashing specially in cases of
matrimonial dispute whether the FIR in fact discloses
8
commission of an offence by the relatives of the principal
accused or the FIR prima facie discloses a case of overimplication
by involving the entire family of the accused at the
instance of the complainant, who is out to settle her scores
arising out of the teething problem or skirmish of domestic
bickering while settling down in her new matrimonial
surrounding.
For the reasons aforementioned above, the order passed
by the Special Judge, SC/ST Act, Kannauj in Criminal Revision No.
22/14/2002 whereby the CJM is directed to summon the accused
under sections 498A, 323, 504, 506 IPC and 2/3 Dowry
Prohibition Act, is not justified. The Magistrate in compliance of
that order without applying his mind summoned the accused by
the impugned order is also not justified. Therefore, the impugned
order passed by the Chief Judicial Magistrate is not liable to be
sustained as it suffers from illegality.
The revision is allowed.
The impugned order, passed by the Chief Judicial
Magistrate, Kannauj in Complaint Case No. 2603 of 2003 (Munshi
Lal vs. Arun Kumar) is hereby set aside and the matter be
remanded back to the CJM to decide the matter afresh according
to law.
Office to communicate this order to the concerned court.
Order Date :- 09.12.2016
Puspendra