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KM. MONA AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Km. Mona And Others v. State Of U.P. And Others - CRIMINAL REVISION No. 4674 of 2006 [2006] RD-AH 19477 (17 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Reserved

CRIMINAL REVISION NO. 4674 OF 2006

Km. Mona and others ................................................Revisionists

           versus

State of UP and another............................................Respondents.

Hon'ble Vinod Prasad, J.

             Aggrieved by their summoning order dated 15.7.2006, under section 319 Cr.P.C., passed by Additional Chief Judicial Magistrate, Court No. 1, Mathura in criminal case no. 1312 of 2005 State versus Gajendra Pal Singh And Others, the three revisionists- Km. Mona, Smt Poonam and Balvir Singh have approached this court in it's revisional jurisdiction under sections 397/401 Cr.P.C. with the prayer that the said order of summoning them in the aforesaid case be quashed. Their interim prayer is for stay of further proceeding of the said case no. 1312 of 2005 State versus Gajendra Pal Singh And Others interregnum.

In short the factual matrix of the case are that a FIR was lodged by Raghunath Prasad  against Veeri Singh, his wife Smt Prabha, his two sons Gajendra Singh and K.P.Singh and two daughters Km. Mona ,Smt. Poonam  and one Balbir Singh at police station Govardhan District Mathura as crime number 270 of 2003 under sections 498A, 323 IPC  and ¾ D.P. Act in respect of an incident dated 26.11.2001 to 14.7.2003. The narration of incident in the said FIR were that Kusum Singh,daughter of the informant Raghunath Prasad Pali was married to Gajendra Singh son of Veeri Singh  on 26.11.2001.In the marriage the  informant had spent Rs. 5 lakhs which included one lakh fifty thousand cash, one Hero Honda Motor Cycle, 20 Tolas of gold 1 ½ KG of silver ornaments fridge, Washing Machine and other  house hold articles. The accused were no satisfied with the dowry given in the marriage and started torturing Smt. Kusum for bring a car. For the fulfillment of the said demand Kusum was assaulted also and was subjected to torture. Kusum made a complaint of the said demand to the informant and other relatives. The informant tried to pacify the in laws but of no avail. There was a conciliatory meeting also in which the accused had said that they will not demand the dowry henceforth. On 18.7.2003 the accused persons accompanied with Kusum came to do Govardhan Parikrama  on a jeep and then while returning they dropped Smt Kusum near Agra Canal at 1.30 AM in the night of 14.7.2003 and went away warning her that she will not bring the car they will accept her back.  Smt. Kusum tried to plead that her parents were poor and they will not be able to fulfill the car demand she was assaulted as well. This incident was witnessed by Pooran, Banwari Lal, Pritam Singh, Bhagwan Das, who all saved Kusum. The accused then left for Mathura. The informant tried to lodge the report on 14.7.2003 and 17.7.2003 but the same was not registered. At last he filed a written FIR to Senior Superintendent Of Police Mathura on 18.7.2003 and on his direction his FIR was registered on 16.10.2003 at 8.30 PM at PS Govardhan District Mathura as crime number 270 of 2003 under sections 498A, 323, IPC and ¾ D.P. Act.  The police investigated the matter and ultimately submitted a charge sheet against rest of the accused persons but for the revisionist against whom the police did not find offence being committed by them. The submission of charge sheet was succeeded by trial in the court of Ist Additional Chief Judicial Magistrate Mathura as case number 1312 of 2005 State versus Gajendra Pal And Others. In the trial during the examination of PW 2 Smt. Kusum an application, 27 Ba, was filed by the prosecution to summon the revisionists under section 319 Cr.P.C. but the same was rejected by the trial court vide it's order dated 6.6.2006 on the grounds that the three revisionist are married Nanad and Nandoi and she used to reside in her in laws house and that merely because they were named in the statement they should not be summoned. More over the cross examination of PW.2 was continuing and therefore till her cross-examination is over there was no reason to summon the revisionists vide annexure no. 3 to the affidavit filed in support of this revision. How ever from the record it transpires that after the examination of PW 2 Kusum, the wife was over on 9.6.2006 the prosecution filed another application for summoning the revisionist under section 319 Cr.P.C. vide paper no. 48 A. which was allowed by the trial court vide it's impugned order dated 15.7.06  which order is under challenge in this revision.

I have hear Sri Rahul Chaturvedi learned counsel for the applicant in support of this revision and the learned AGA as well as Sri K.K.Nirkhi, Learned counsel for the victim Smt. Kusum.

Sri Rahul Chaturvedi contended that the summoning order under section 319 Cr.P.C. is illegal and deserves to be quashed. He contended that on the earlier occasion the trial court had rightly rejected the prayer for summoning the revisionists by passing a well-reasoned and well-considered order on 6.6.2006. He further contended that the revisionist no. 1 Km. Mona is unmarried girl and is handicapped and therefore her implication is false. He further contended that rest of the two revisionists Smt Poonam and her husband Balvir are residents of Bulandshahr and therefore their summoning order is also bad in law. He also contended that there are no specific allegations against the revisionists and they are named in the statements only to be harassed. He contended that during the course of investigation the complicity of the revisionist was found to be false and therefore on the same evidence the revisionist should not be summoned. He further contended that the summoning order is illegal and deserves to be set aside.

Learned AGA as well as learned counsel for the victim contended that since the revisionist are named in the statements therefore they are liable to be summoned and there is no illegality in the impugned order which deserves to be up held. They further submitted that the demand of the car or of RS. Two lakhs in lieu thereof was made by all the accused and therefore the summoning order is not bad in law. They also contended that once a person is named in the statement recorded in court as an accused the court has no option but to summon him for trial. In their submission the revision lacked merit and deserved to be dismissed.

In view of rival contentions and keeping the facts of the case into consideration when I examine the matter it transpired that the revisionist were named in the FIR. There was no specific allegation against them but they were named in a casual way. The investigating officer after the investigation found their complicity in the crime not established and hence no charge sheet was submitted in their respect. At the stage of summoning on objection was raised regarding non-charge sheeting the revisionist by the informant or the victim. During the trial PW 1 Aghast oath Prasad had admitted that Gajendra husband had filed a case of restitution of conjugal rights in Oligarchy much before the present case.He also admitted the revisionist no. 1 Mona is unmarried and she is handicapped by one leg. He further admitted that revisionist no, 2 was married prior to the marriage of Kusum. He intentionally concealed stating the age of Mona and regarding children of Smt. Poonam and her husband. In his statement he has no said any thing against the revisionist specifically but has only said at times "Sasural Wale". At rest of the places he has stated "All accused" without making any specification. His whole statement read to gather indicates that there is a dispute between husband and wife read-only far statement of victim Kusum PW 2 is concerned her statement also does no improve upon the merit of prosecution case. She is an educated lady and is postgraduate. She has also admitted that Mona has got a deformity in her one leg. She has admitted that the application under section 9 of Hindu Marriage Act 1955 was filed by Gajendra(husband) in 2002 being AP No. 1105/ 02. She even does not remember as the demand was made for which car. She admitted that the revisionist no. 3 is posted in Narora and both revisionist no. 2 and 3 Poonam and Balvir had two daughters Shikha and Sonu aged about 4 and 2 years respectively. She has also admitted that but for her husband and father in law no other accused has assaulted her. Thus from the above gist of her statement it is clear that the material on record is  insuficient to try the revisionist. At this stage a glimpse of law laid down by the apex court may be taken to be the  guiding factor. It has been held by the apex court in the case of Ramesh And Others versus State of Tamil Nadu  : AIR  2005 SC 1989 as follows:-

"6. Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the appellant-Gowri Ramaswamy. Looking at the allegations in the F.I.R. and the contents of charge-sheet, we hold that none of the alleged offences, viz. Sections 498-A, 406 of the I.P.C. and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant's husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e. between March and October, 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498-A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of informant by her sister-in-law (appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the F.I.R. is that on some occasions, she directed the complainant to wash W.C. and she used to abuse her and use to pass remarks such as 'even if you have got much jewellery, you are our slave'. It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in- law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband's relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant-Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant-Gowri Ramaswamy are hereby quashed and her appeal stands allowed."      

Further in the case of Michael Machado v. Central Bureau of Investigation: AIR 2000 SUPREME COURT 1127  the apex court has held as follows:-

"11. The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

12.But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons."

 The Supreme court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67  has held that :-

"But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken."

It has been further held by the apex court in the case of  Michael Machado (Supra):-

"14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action."

Thus from the above law laid down by the apex court it is evident that no body should be summoned under section 319 Cr.P.C. only to face the trial. There should be possibility of his conviction as well. Power under section 319 Cr.P.C. is an extraordinary power given to the court to be exercised ex- debito justice. It should be exercised sparingly only when it is required most. Summoning any body as an accused at the stage of trial after the evidence had started in the case should be resorted to only when there is reasonable possibility of his conviction. Asking some body to fact the ordeal of trial only to be acquitted is not the law but is his harassment.

On the facts of the present case I find that revisionist no.1 is an unmarried girl who is handicapped and has deformity in her leg. Her involvement in the offence is a remote possibility. So far as two other revisionists are concerned they are a married couple resident of different places. Merely because they are relatives of the husband they should not be harassed without any specific allegation against them. They have got two infant daughters and it very unlikely that they will indulge in the demand of dowry and torture. There is no specific allegation against them and their names are mentioned as a matter of course in the statements, which in my view was not sufficient to anoint any charge on them.

Resultantly in view of the discussions made above I find force in this revision, which deserves to be allowed.

This revision is allowed. The impugned order dated 15.7.2006, under section 319 Cr.P.C., passed by Additional Chief Judicial Magistrate, Court No. 1, Mathura in criminal case no. 1312 of 2005 State versus Gajendra Pal Singh And Others summoning the three revisionists- Km. Mona, Smt Poonam and Balvir Singh is here by set aside. The trial court is directed to proceed with the case against rest of the accused and conclude the same if possible within five months.

Date17.11.2006

SKS/ 4674/06


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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