Allahabad High Court
Sri. Zahid Hussain vs State Of U.P. And 8 Others on 4 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:60265 Court No. - 77 Case :- CRIMINAL REVISION No. - 327 of 2023 Revisionist :- Sri. Zahid Hussain Opposite Party :- State Of U.P. And 8 Others Counsel for Revisionist :- Narendra Kumar,Prateeyush Kumar Pathak,Rabindra Bahadur Singh Counsel for Opposite Party :- Deepak Kumar,G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Prateeyush Kumar Pathak, the learned counsel for revisionist and the learned A.G.A. for State.
2. Perused the record.
3. Present criminal revision came up for admission on 20.12.2022 and this Court passed the following order:-
"This criminal revision has been filed beyond 52 days from the limitation period. An application under Section 5 of Limitation Act, has been moved on behalf of applicant for condoning the delay in filing the revision.
Ground mentioned in affidavit filed in support of delay condonation application, is sufficient. Accordingly delay condonation application is allowed.
Delay in filing the revision is condoned.
Office is directed to allot a regular number to this revision.
Issue notice to respondent nos. 2 to 9 returnable at an early date.
Steps be taken within 15 days.
Put up as fresh on 22.02.2023."
4. Pursuant to above order dated 20.12.2022, notices were issued to opposite parties 2 to 9, Office has submitted a report dated 22.3.2023 stating therein that notices issued to opposite parties 2 to 9 have been served personally. Mr. Deepak Kumar, Advocate, has put in appearance on behalf of opposite party-2. Even though, the name of Mr. Deepak Kumar, Advocate, is duly published in the cause list, neither he nor any one on his behalf is present to oppose this revision, even in revised call.
5. This criminal revision has been filed challenging the judgement and order dated 27.5.2022, passed by Additional District and Sessions Judge (F.T.C. 1), Bijnor, in Sessions Trial No. 1078 of 2021 (State Vs. Mohammad Kasim), under Sections 498-A, 304-B IPC, in the alternate under Section 302 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Noorpur, District Bijnor, whereby the application dated 16.05.2022 under Section 319 Cr.P.C. (Paper No. Ka-15) filed by the prosecution (first informant) has been rejected.
6. Record shows that in respect of an incident, which is alleged to have occurred on 30.6.2021, a delayed F.I.R. dated 1.7.2021 was lodged by first informant Jahid Hussain and was registered as Case Crime No. 0229 of 2021, under Sections 4978-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, P.S. Noorpur, District Bijnor. In the aforesaid F.I.R., 9 persons namely Kasim (husband), Azam (jeth), Jubair (devar), Shakib (devar), Rizwan (devar), Abubkar (devar), Nasrin (mother-in-law), Rahil (jethani) and Dilshad have been nominated as named accused.
7. The gravamen of the allegations made in the F.I.R. is to the effect that named accused have caused the death of daughter of the first informant on account of non fulfillment of the additional demand of dowry.
8. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned crime number in terms of Chapter XII Cr. P. C. Investigating Officer first completed the preliminary formalities i.e. visiting the place of occurrence, recovering the dead body, inqeust of the body of deceased, postmortem of the body of deceased and preparation of the site plan, he proceeded to examine the first informant and other witnesses under Section 161 Cr. P. C. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that complicity of only one of the named accused namely Mohd. Kasim is established in the crime in question. Accordingly, he submitted the police report in terms of Section 173 (2) Cr. P. C., whereby aforementioned named accused was charge sheeted under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, whereas the other named accused were exculpated.
9. After submission of the police report (charge sheet) as noted above, the concerned Magistrate took cognizance upon same. However, as offence complained of is triable exclusively by the Court of Sessions, consequently, the concerned Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 1078 of 2021 (State Vs. Mohammad Kasim), under Sections 498-A, 304-B IPC in the alternate under Section 302 IPC and Sections 3/4 Dowry Prohibition Act, came to be registered and is now pending in the Court of Additional District and Sessions Judge (F.T.C. 1), District Bijnor.
10. Court below framed charges against charge sheeted accused namely Mohd. Kasim, who denied the same and pleaded innocence. Consequently, the trial procedure commenced.
11. Prosecution in order to bring home the charges so framed adduced the first informant Jahid Hussain as P.W. 1 up to this stage.
12. After the statement-in-chief and examination-in-chief of Jahid Hussain (first informant) i.e. P.W. 1 was recorded, prosecution filed an application dated 16.5.2022 under Section 319 Cr. P. C. praying therein that since as per the deposition of P.W. 1, the complicity of other named but not charge sheeted accused is also established in the crime in question, therefore, they be also summoned to face trial. This application came to be registered as (Paper No. Ka-15).
13. Court below then proceeded to decide the said application under Section 319 Cr. P. C. in the light of the statement-in-chief/examination-in-chief of P.W. 1. Court below first referred to the allegations made in the application under Section 319 Cr.P.C. Thereafter, Court referred to the Five Judges Bench judgement of Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC, 92 and noted the ratio laid down therein. Having undertaken the above exercise, Court below proceeded to evaluate the allegations made in the application under Section 319 Cr. P. C. in the light of the oral evidence of P.W. 1 and the law laid down by the Apex Court in aforementioned judgment.
14. Having undertaken the above exercise, Court below came to the conclusion that since the deposition of P.W. 1 is silent with regard to the specific role of the prospective accused in the crime in question and coupled with the fact that primarily the dispute between the parties is a matrimonial dispute and therefore, there is every possibility of implicating all the family members/distant relatives in the crime in question, Court below came to the conclusion that no good ground has been made out to summon the prospective accused. It, accordingly, rejected the application under Section 319 Cr. P. C. filed by the prosecution, vide order dated 27.5.2022.
15. Thus feeling aggrieved by the order dated 27.5.2022, revisionist has now approached this Court by means of present criminal revision.
16. Learned counsel for revisionist contends that the order impugned in present criminal revision is manifestly illegal and without jurisidiction. Consequently, the same is liable to be set aside by this Court. With reference to the statement-in-chief/examination-in-chief of P.W. 1, it is urged by the learned counsel for revisionist that since the complicity of the prospective accused in the crime in question is fully established as per the deposition of PW-1, therefore, Court below ought to have allowed the application filed by the prosecution under Section 319 Cr.P.C. However, the Court below on an erroneous consideration has rejected the same. On the above conspectus, he, therefore, submits with vehemence that the order impugned cannot be sustained and is, therefore, liable to be set aside by this Court and the application under Section 319 Cr. P. C. filed by the prosecution for summoning the prospective accused be allowed.
17. It is then contended by the learned counsel for revisionist that the FIR giving rise to the above mentioned Sessions Trial was lodged under Section 304-B IPC, meaning thereby that the death of deceased is a dowry death. The charge under Section 302 IPC is an alternate charge and only in case, the evidence adduced during the course of trial, is found to be deficient in that regard the charge sheeted accused can be tried under Section 302 IPC. According to the learned counsel for revisionist, the application under Section 319 Cr.P.C. filed by the prosectuion could not have been rejected on the above ground. He submits that since the prospective accused are inmates of the house, in which, the occurrence giving rise to present criminal proceedings had taken place, therefore, by virtue of the provisions contained in Sections 106 and 113-B of the Evidence Act, the burden is upon the prospective accused themselves to not only to explain the manner of occurrence but also their innocence. The said exercise can be undertaken by Court below only when the prospective accused are summoned by Court below to face trial. Court below, while passing the impugned order, has completely ignored the aforesaid aspect of the matter, which has vitiated the same. As such, the order impugned cannot be sustained and therefore, liable to be set aside by this Court.
18. Per contra, the learned A.G.A. has vehemently opposed present criminal revision. He submits that the order impugned in present criminal revision is perfectly just and legal and therefore, not liable to be interfered with. Court below has rightly rejected the application under Section 319 Cr.P.C. filed by the prosecution inasmuch as, in the deposition of PW-1, except for the mere complicity of the prospective accused in the crime in question, nothing more has emerged. It is well settled that a prospective accused cannot be summoned under Section 319 Cr.P.C. only on the basis of his mere complicity in the crime in question. Something more than mere complicity by way of cogent and strong evidence is required to summon a prospective accused. The prosecution has not even discharged it's primary burden regarding the involvement of the prospective accused in the crime in question nor it could be established as to what specific role was played by the prospective accused in the crime in question. As such, no illegality has been committed by Court below in rejecting the application under Section 319 Cr.P.C. filed by the prosecution. Learned A.G.A. thus contends that no good ground for interference by this Court is made out and consequently, present criminal revision is liable to be dismissed by this Court.
19. Having heard the learned counsel for revisionist, the learned A.G.A. for State and upon perusal of record, this Court finds that the issue, which arises for determination in present revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C. As a corollary to above, Court will also have to consider;- Whether the order impugned is within the established parameters or not.
20. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh.
(xx). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxi). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (5 Judges), Paragraphs 7, 37, 38 and 41.
(xxii). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxiii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxiv). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxv) Yashonandan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxvi) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxvii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174
21. With the aid of above, this Court now proceeds to examine the veracity of impugned judgement and order dated 27.5.2022, passed by Additional District and Sessions Judge (F.T.C. 1), Bijnor, in Sessions Trial No. 1078 of 2021 (State Vs. Mohammad Kasim), under Sections 498-A, 304-B IPC in the alternate under Section 302 IPC and Sections 3/4 Dowry Prohibition Act, P.S. Noorpur, District Bijnor, whereby the application dated 16.05.2023 under Section 319 Cr.P.C. filed by the prosecution (first informant) has been rejected.
22. Before proceeding to do so, it must be noticed that following issues stand settled as per the judgements of the Supreme Court mentioned herein above and, therefore, the same are not required to be dealt with, by this Court.
23. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
24. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
25. Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
26. The nature of satisfaction required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses more than prima facie case as exercised at the time of framing of charge but short of satisfaction to an extent that the evidence if goes unrebutted would lead to conviction.
27. A prospective accused cannot be summoned under Section 319 Cr.P.C. to face trial merely on the basis of his complicity in the crime in question but only when strong and cogent evidence has emerged against him vide S. Mohammed Ispahani (supra).
28. The power under Section 319 Cr.P.C. is an extra ordinary power which should be exercised sparingly. Courts should exercise their jurisdiction not in a "casual and cavalier" fashion but diligently vide S. Mohammed Ispahani (Supra).
29. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
30. The trial Court is competent to exercise it's power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation, which suggests otherwise, the trial Court is at least duty bound to look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record vide Brijendra Singh (Supra).
31. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra)).
32. An accused who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
33. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's (Supra) case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
34. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
35. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
36. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him vide Yashodhan Singh and Others (Supra).
37. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of PW-1, Hardayal (first informant) and PW-2, Yashpal, the revisionist could have been summoned by court below? As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner.?"
38. Admittedly, the prospective accused were named in the FIR but were exculpated by the Investigating Officer in the police report submitted in terms of Section 173(2) Cr.P.C. It is only after the statement-in-chief/examination-in-chief of PW-1 was recorded that prosecution filed an application under Section 319 Cr.P.C. with the prayer that since the complicity of the prospective accused in the crime in question is also established as per the deposition of PW-1, therefore, they be also summoned to face trial in aforementioned Sessions Trial. By virtue to the law laid down by Apex Court in the Five Judges Bench judgment in Hardeep Singh (Supra), a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness. As such, Court below has not committed any illegality in deciding the application under Section 319 Cr.P.C. filed by the prosecution on the basis of the deposition of PW-1 only as recorded before Court below.
39. The next issue which is required to be considered by this Court is whether satisfaction is required to be recorded by the Court considering the application under Section 319 Cr.P.C. filed by the prosecution and in case, any such satisfaction is required then what will be the degree of such satisfaction to be recorded by Court for summoning a prospective accused? The issue is no longer res-integra and stands concluded. The Apex Court in the case of Hardeep Singh (Surpa), has dealt with this very issue and after a detailed deliberation concluded as follows in paragraph 106 of the report:-
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
40. When the order impugned is examined in the light of above, it cannot be said that as per the deposition of PW-1, such material had emerged before Court below on the basis of which, the same degree of satisfaction could have been recorded, as is required to be recorded by virtue of the observations made in the Five Judges Bench judgment in Hardeep Singh (Supra) noted herein above. As such, it cannot be said that Court below has acted arbitrarily in recorded satisfaction adverse to the revisionist.
41. Even though, the law with regard to the summoning of a prospective accused was crystallized by the Five Judges Bench judgment in Hardeep Singh (Supra) and formulated the same in paragraphs 4, 5, 6, 6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6 yet the parameters with regard to the exercise of jurisdiction under Section 319 Cr.P.C. were subsequently, made more stringent but in favour of accused by the subsequent Benches of the Supreme Court in Brijendra Singh Vs. State of Rajsthan, (2017) 7 SCC 706 and S Mohammad Ishpahani Vs. Yogendra Chandak (2017) 16 SCC 22. On a conjoint reading of the aforementioned judgments, the Court upon consideration of the law laid down in Hardeep Singh (Supra) has gone steps further and limited the scope with regard to exercise of jurisdiction under Section 319 Cr.P.C. by formulating (a) a prospective accused can be summoned on the statement-in-chief of one prosecution witness (b) however, in a case, where an accused is named in the F.I.R. but exculpated by the Investigating Officer in the police report, then Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as the said material is a relevant material (c) before summoning a prospective accused on the basis of the deposition of prosecution witness, the Court must draw a parallel in between the statement of such witness recorded under Section 161 Cr. P. C. and his deposition before Court below to find out whether something new has emerged in the deposition of the prosecution witness than what was stated by him in his statement under Section 161 Cr.P.C., (d) the prospective accused cannot be summoned merely on the basis of his complicity in the crime in question, (e) the power under Section 319 Cr. P. C. is an extraordinary power and should be exercised sparingly and not in a routine manner, (f) the Courts should exercise their jurisdiction diligently and not in a "casual and cavalier" fashion, (g) it is only when strong and cogent evidence has emerged against a prospective accused, which is much more than mere complicity of a prospective accused in the crime in question can he be summoned under Section 319 Cr.P.C.
42. When the order impugned is examined in the light of above, there can be no hesitation to conclude that except for the mere complicity of the prospective accused in the crime in question, nothing more which may be strong and cogent has emerged. As such, no illegality has been committed by Court below in passing the order impugned.
43. There is another aspect of the matter. The Apex Court in the case of Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, has observed that it is a growing tendency to name the family members and distant relatives in matrimonial disputes under Section 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act. Considering the above, the Court expressed it's anxiety in paragraphs 13 to 21 of the report, which reads as under:-
"13. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr.5, it was also observed:-
"4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested."
14. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. 6, it has also been observed:-
"32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.
36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."
15. In Geeta Mehrotra & Anr. Vs. State of UP & Anr.7, it was observed:-
"21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
"12....There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts."
The view taken by the judges in this matter was that the courts would not encourage such disputes."
16. Recently, in K. Subba Rao v. The State of Telangana 8, it was also observed that:-
"6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."
17. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.
18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.
19. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17.
20. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.
21. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged"
44. When the deposition of PW-1 is examined in the light of above, it is apparent that PW-1 is totally silent with regard to the manner in which, the alleged demand of dowry was made by the prospective accused or the manner in which, physical/mental cruelty was committed by the prospective accused upon the deceased. Therefore, in view of above, the complicity of the prospective accused in the crime in question cannot be said to be prima-facie established. In view of above, the submission urged by the learned counsel for revisionist with reference to the provisions contained in Sections 106 and 113-B of the Evidence Act also do not create such ground, so as to summon the prospective accused to face trial in aforementioned Sessions Trial. In fact, as per the material up to this stage, the prosecution has failed to even discharge it's primary burden of establishing something more than mere complicity of the prospective accused in the crime in question. The Court below while passing the order impugned has neither committed a jurisdictional error nor has it exercised it's jurisdiction with material irregularity so as to warrant interference by this Court in exercise of jurisdiction under Section 401 Cr.P.C.
45. In view of the discussion made above, the present criminal revision fails and is liable to be dismissed.
46. It is, accordingly, dismissed.
47. However, considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 4.4.2024 HSM