Allahabad High Court
Kamal Saini And Ors. vs State Of U.P. And Anr. on 11 July, 2006
Equivalent citations: II(2007)DMC420
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. A whole family consisting of father Roop Singh Saini, (applicant No. 2), his wife Mrs. Kassi Devi (applicant No. 3), and their three sons Kamal Saini (applicant No. 1), Devendra Saini (applicant No. 4) and Kailash Chand Saini (applicant No. 7), wife of Devendra Saini, namely, Smt. Pushpa Devi (applicant No. 5), daughter of Roop Singh Saini and Kassi Devi, namely, Sunita and her husband Ramveer Saini (applicant Nos. 6 and 8) have invoked the inherent jurisdiction of this Court under Section 482, Cr.P.C. with the prayer to quash the proceeding of Criminal Case No. 495 of 2005, State v. Kamal Saini and Ors. under Sections 498A, 323 and 506, IPC and Sections 3/4, Dowry Prohibition Act relating to P.S. Sikandrabad, District Bulandshahr pending before the C.J.M., Bulandshahr. Their subsequent prayer is for stay of further proceedings of aforesaid case interregnum.
2. Incapsulate facts, which have given rise to the present application are that an application under Section 156(3), Cr.P.C. was filed by Sunil Kumar Saini son of Mahesh Singh, resident of Mohalla Kayasthvada, P.S. Sikandrabad, District Bulandshahr in the Court of C.J.M., Bulandshahr being Misc. Application No. 281 of 2004 for offence under Sections 498A, 323 and 506, IPC and 3/4, Dowry Prohibition Act, P.S. Sikandrabad, District Bulandshahr against the present applicants. The allegations levelled were that Mahendri sister of Sunil Kumar Saini, respondent No. 2 was married to Kamal Saini applicant No. 1 on 22.2.2004 at Sikandrabad, District Bulandshahr. In the marriage, the father of respondent No. 2, Mahesh Singh had given Rs. 2 lacs as cash, a motor cycle, Refrigerator, T.V., Sofa set, Almirah and 20 Tolas of ornaments and utensils etc. as dowry. Smt. Mahendri in her in-laws house was tortured on the ground that in the marriage Rs. 4 lacs cash and a Maruti car was agreed to be given as dowry but the car and remaining Rs. 2 lacs were not given. Smt. Mahendri made a complaint regarding said demand of dowry and torture to respondent No. 2, Sunil Kumar Saini, her real brother. On objection being raised by respondent No. 2, Sunil Kumar Saini, he was also misbehaved with by applicant-accused. For non-fulfilment of dowry, Smt. Mahendri was also assaulted by kicks and fists. On getting the information of assault respondent No. 2 brought her sister back to her parental house. After sometime, her husband Kamal Saini took her back to his house but there the accused again repeated the demand of aforesaid dowry and assaulted Smt. Mahendri for the same so much so that even an attempt to burn her was made by pouring kerosene oil on her. On hue and cry raised by her, she was saved by her neighbours. On 22.5.2004 the applicant accused threatened to do away with Smt. Mahendri because of non-fulfilment of dowry in the presence of respondent No. 2 and her father compelling them to bring her back to their house and since then she was living with them. On 2.6.2004 at 8.00 a.m. all the accused persons came to the house of respondent No. 2 at Sikandrabad, repeated the demand of dowry, and on inability being shown by her father Mahendra Singh, they assaulted Smt. Mahendri. The neighbour Jagdish Singh, on hearing the hue and cry, reached on the spot and intervened into the matter. The accused then left the house threatening to kill Smt. Mahendri. Respondent No. 2 Sunil Kumar Saini endeavoured to lodge a FIR against the accused-applicants at Police Station, Sikandrabad, but failed in his such attempt. He got his father and his sister medically examined in the District Hospital and then despatched a letter to the S.S.P., Bulandshahr on 4.6.2004. Since his efforts of getting the FIR lodged against the applicants went in vain, therefore, the respondent No. 2 resorted to file an application under Section 156(3), Cr.P.C. in the Court of C.J.M., Bulandshahr on 6.7.2004. A copy of the aforesaid application is appended as Annexure-1 to the affidavit filed in support of this application. Under the orders of the C.J.M. case Crime No. 12 of 2004, under Sections 498A, 323 and 506, IPC and 3/4, D.P. Act was registered against the applicants on 6.7.2004 at 2.20 p.m. at P.S. Sikandrabad, District Bulandshahr. The police started the investigation into the crime but ultimately it found the case to be false and, therefore, it submitted a final report No. 23 of 2004 Annexure No. 2 to the affidavit filed in support of this application on 3.4.2004. The said F.I.R. was sent to the Circle Officer the same day, but the Circle Officer sent it back for further investigation on 17.8.2004. Subsequent investigation was conducted by SI Umed Kumar, who opined in the case diary that the dispute is between the spouses who levelled allegations against each other. The wife thought that Kamala Saini was an illiterate and brainless and the wife did not want to live in Village Gurjardhari as she wanted to live in the city. The husband on the other hand, levelled allegations that his wife got aborted at her brother-in-laws (Jija's) place and was a woman of easy virtues. I.O. further observed that when the applicants went to bring back Smt. Mahendri on 2.6.2004, then her relatives refused to send her back and demanded Rs. 6 lacs from the applicants otherwise threatened to falsely implicate them in a false case. I.O. further observed that after getting a false medical report prepared on 3.6.2004 a false case was set up by respondent No. 2. His investigation further revealed that on 2.6.2004 only the male members of the applicants family had come to take away Smt. Mahendri and not the ladies of the house. Concluding thus the I.O. had filed a final report in the case.
3. Against the said final report respondent No. 2 filed an application on 18.12.2004 before the Court concerned to permit him to file a protest petition against submission of the Final Report vide Annexure-4 and ultimately he filed a protest petition dated 24.1.2005. Along with the protest petition he also filed affidavits (Annexure-6) of himself. Smt. Mahendri, Chiranji son of Khem Singh, Gopal son of Bharat Singh Saini, Pappu Saini son of Kanhaya Lal, Sanjay son of Deewan Singh Saini. The Trial Court, C.J.M., Bulandshahr vide his order dated 8.2.2005 summoned the accused for offences under Sections 498A, 323 and 506, IPC and Sections 3/4, D.P. Act and fixed 10.3.2005 for their appearance, vide Annexure-7. The record of this criminal misc. application further revealed that an objection was filed against the summoning order by the accused mainly on the ground that since the affidavits had been filed by the respondent No. 2, their case should be tried as a complaint case by the Court but the said objection was rejected by the C.J.M., Bulandshahr vide his order dated 7.1.2006. Hence this application.
4. I have heard Mr. Manish Tiwary, learned Counsel for the applicants and the learned A.G.A.
5. Mr. Tiwary contended that the whole procedure adopted by the C.J.M., in the instant case, is absolutely illegal as the protest petition was accompanied by the affidavits of various witnesses and the C.J.M., while summoning the accused, had taken those affidavits into consideration and, therefore, he should have followed the procedure of the complaint case as is provided under Chapter XV, Cr.P.C. which has not been done in the present case, and consequently, the prosecution of the applicants deserves to be quashed as being based on illegal procedure. The submission of Mr. Tiwary is that the Magistrate has not recorded the statements of the informant and his witnesses under Sections 200 and 202, Cr.P.C. and only after following the said procedure of complaint case that he should have summoned the applicants. He further contended that since the affidavits filed in support of the protest petition were also taken into consideration by the Magistrate, therefore, the Magistrate has based his opinion of summoning the accused on extraneous consideration, other than what was provided in the case diary and consequently it was necessary for him to follow the procedure of the complaint case before summoning of the accused which procedure was sine qua non under such circumstances. In his submission, he relied upon the judgment of this Court reported in 2001 (1) ACC 1096, Pakhando v. State. In the aforesaid judgment it has been held that if the Magistrate takes into consideration any other material other than which was contained in the case diary, then he should follow the procedure of the complaint case before summoning the accused in the cases where the final report had been submitted by the police after investigation into the offence and a protest petition had been filed against the submissions of the final report by the I.O. On these submissions, learned Counsel for the applicant concluded his argument by submitting that the procedure adopted by the Magistrate in the present case is wholly illegal and, therefore, the applicants should not be prosecuted on the basis of an illegal procedure and the prosecution against them deserves to be quashed.
6. Learned A.G.A., on the other hand, contended that the Magistrate has committed no illegality in summoning the accused and the contention raised by the learned Counsel for the applicants is meritless. He submitted that the affidavits filed along with protest petition did not contain any extraneous material than what was contained in the case diary. He further submitted that the affidavits were filed only for the purpose to show that the final report does not deserve to be accepted and the case diary material discloses commission of cognizable offences against the applicants. He further contended that there was no necessity for the Magistrate to follow the procedue of 'complaint case' as in his view since the cognizable offence was disclosed against the present applicants from the material in the case diary, the complainant ought to be given an opportunity to substantiate his allegations by leading evidence in a proper trial. He contended that the procedure adopted by the Magistrate is neither illegal nor improper and prima facie, there is sufficient material on record of the case diary to try the accused persons for offences under Sections 498A, 323 and 506, IPC and Sections 3/4, D.P. Act. He contended that there is no illegality in the order of summoning passed by the C.J.M. and this application, being meritless, deserves to be dismissed.
7. I have given my anxious consideration on the rival submissions raised at the bar and have gone through material placed on record of this Crl. Misc. Application. The submission canvassed lies in a narrow compass inasmuch as the whole submission centres round the fact as to whether merely by filing affidavit or affidavits in support of the protest petition, the Trial Court is bound to follow the procedure of complaint case or not before summoning the accused for offences which had been committed by them? This controversy had earlier come up before me in a case reported in 2006 Allahabad Criminal Cases (Vol. 55) page No. 1, Sukhpal and Anr. v. State of U.P. and Ors. In the aforesaid case, it has been held by me that any other material or extraneous material, means additional statement of fact in respect of incident and not the reiteration of those very facts which had already been stated during the course of investigation. Repeated narration of the same facts is not additional material but reiteration of the same material or facts. With this exposition of law and applying the same to the facts of the present case. I looked into the affidavits filed by the witness in support of the protest petition in the instant case. In all the affidavits, what has been stated by the witness are those very facts which had been mentioned in the application under Section 156(3), Cr.P.C. which had culminated into the FIR. Narration of same facts in the affidavits, without containing any new material from what had already been stated in the application under Section 156(3), Cr.P.C. does not debar the Magistrate from acting under Section 190 (1)(b), Cr.P.C. In the present case there was no new or additional facts that had constituted new and additional material. In this case, affidavits were not an additional material and since the contents of the affidavits are the same which found place in the application under Section 156(3), Cr.P.C., therefore, there was no new or additional material. In this view of the matter, the contention raised by the learned Counsel for appliants that there was additional material which had been taken into consideration by the Chief Judicial Magistrate, Bulandshahr for summoning the accused is not correct and is repelled. Since there was no additional material before the Chief Judicial Magistrate, on the basis of which he had summoned the present applicants for offences under Sections 498A, 323 and 506, IPC and Sections 3/4, D.P. Act, therefore, he was not required to follow the procedure of the complaint case at all.
8. In view of what has been stated above, I do not find any merit in this application which deserves to be dismissed.
9. This Criminal Misc. Application No. 3141 of 2006 being devoid of merits, is hereby dismissed. The Trial Court is directed to expedite the trial and conclude it expeditiously.