Delhi District Court
Suman vs . The State & Anr. on 14 January, 2019
CR No. 336/18
Suman Vs. The State & Anr.
IN THE COURT OF : DR. VIJAY KUMAR DAHIYA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the Matter of
CR No. 336/18 :-
1. Mrs. Suman
W/o Sh. Prince Garg
D/o Sh. Om Prakash
Presently R/o 7/E, Block-L, Vijay Vihar
Phase-II, Delhi-110085.
....Petitioner
Versus
1. The State (N.C.T. of Delhi)
2. Mrs. Hema Aggarwal
D/o Sh.S.P.Garg,
R/o A-1/217-A, First Floor, Hastal Road,
Uttam Nagar,
New Delhi-110085.
.....Respondents
Date of Institution : 14.08.2018
Date of conclusion of arguments : 12.11.2018
Date of Order : 14.01.2019
O R D E R :-
1. The present petition has been preferred against the impugned order dated 17.05.2018 whereby the accused persons including the petitioner have been summoned as accused for Page 1 of 10 CR No. 336/18 Suman Vs. The State & Anr.
commission of the offence punishable under Section 323/506 IPC. (For the sake of convenience the accused and the complainant is hereby referred to as the petitioner and respondents respectively).
2. The brief facts, relevant for disposal of this petition, are like this. The respondent No.2 had filed a complaint under Section 200 Cr.PC alongwith application u/s 156 (3) Cr.PC against the petitioner and other accused alleging therein that the petitioner, who happened to be sister-in-law of respondent no. 2, in connivance with her husband, have attacked respondent no. 2 with the intention to kill her on 29.09.2015, when respondent no. 2 had come to her parental home i.e. at B-47 Shish Ram Park, Uttam Nagar, New Delhi (hereinafter referred to as the parental home). The respondent no. 2 alongwith her father-in-law, mother-in-law were coming down-stairs and waited for rickshaw. In the meantime, petitioner extorted respondent no. 2 as to why she had visited the parental home and she will be done to death, in the meantime, Prince Garg, husband of petitioner also came there and started abusing respondent no. 2 in filthy and unparliamentary language. Mother of respondent no. 2 tried to convince petitioner and her husband but Page 2 of 10 CR No. 336/18 Suman Vs. The State & Anr.
they started beating respondent no. 2 with fists blow with intention to kill her. When father of respondent no. 2 tried to stop the petitioner, his finger was beaten by the husband of the petitioner. Police was called. Respondent no. 2 lost consciousness and when she regained her consciousness was found in Gupta Nursing Home. Statement of the respondent no. 2 was recorded by the police and MLC was also taken by the police officials. Respondent no. 2 remained hospitalized w.e.f. 20.09.2015 to 21.09.2015. SHO PS Bindapur failed to lodge the FIR despite respondent no. 2 approached the senior officials.
3. Respondent no. 2 moved the above said application u/s 156 (3) Cr.PC alongwith application u/s 200 Cr.PC and application u/s 156 (3) Cr.PC was dismissed vide order dated 28.11.2015 and thereafter pre-summoning evidence was allowed by respondent no. 2 and the accused persons including the petitioner was summoned through the impugned order.
4. Feeling aggrieved by the impugned order, the present petition has been filed by the petitioners.
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5. During the course of the arguments, Ld. counsel for the petitioner has raised the following contentions namely :
(i) The Ld. Trial Court has not appreciated the fact that respondent no. 2 has concealed the material facts and has not appreciated the court with clean hands and the present complaint filed by respondent no. 2 is nothing but an attempt to make a counter blast against FIR No. 1353/2015 lodged against respondent no. 2 and other accused persons.
(ii) Respondent no. 2 has not sustained any injury in terms of MLC and had respondent no. 2 sustained some injury, PCR might have taken respondent no. 2 for her medical examination and further more the MLC has been prepared in the hospital, where respondent no. 2 was under treatment where she was getting treatment for her chronic asthma problem.
(iii) The version given by respondent no. 2 is full of material contradictions and discrepancies as well as the improvements have been made by respondent no. 2 at different stages of the proceedings, therefore, no offence as alleged is made Page 4 of 10 CR No. 336/18 Suman Vs. The State & Anr.
out against the accused persons including the petitioner. Hence, this petition deserves to be allowed.
6. Counsel for respondent no. 1 & 2 have contended that petitioner alongwith her husband have been summoned through the impugned order, which is an inter-locatory order, therefore, this petition is not maintainable against the purely inter-locatory order. Reliance is placed upon Subaramanivam Sethauraman Vs. State of Maharashtra (2005) SCC Criminal 242.
7. Petition is barred by limitation in as much as the petitioner herself got lodged the FIR bearing no. 1353 dated 20.09.2015. The respondent no. 2 had received the injury on the same date i.e. 20.02.2015, therefore, the petitioner has no right to challenge the summoning order. The property bearing no. A-1/217- A, First floor, Hastsal Road, Uttam Nagar, New Delhi, is owned by mother of respondent no. 2, who had permitted respondent no. 2 and her husband to reside there temporarily. The petitioner is levelling false allegations against the respondent. Neither the Page 5 of 10 CR No. 336/18 Suman Vs. The State & Anr.
petitioner nor her husband are having the right in the property of father of respondent no. 2 and notice was served upon the petitioner and her husband to vacate the parental home. The civil suit filed by the petitioner and her husband was dismissed in default. Apart from that husband of the petitioner had made a statement before Ld. Civil Judge that he had vacated the house / premises of father of respondent no. 2. The petitioner has filed an application under DV Act against respondent no. 2. Respondent no. 2 had gone to her parental home at 2.00 p.m. on 20.09.2018 where she was attacked by the accused persons including the petitioner. Ld. Trial court has rightly summoned the accused person for commission of the offence as detailed in the complaint by exercising its power in a seditious manner as per the settled principle of law. This petition deserves to be dismissed.
8. I have heard the counsels for the parties and with their assistance have gone through the record.
9. It may be noted that Ld. Magistrate were duty bound before issuing the process to find out whether the petitioner was Page 6 of 10 CR No. 336/18 Suman Vs. The State & Anr.
legally responsible for the offence charged. Hon'ble Supreme Court in Pepso Foods Ltd. Vs. Special Judicial Magistrate, AIR 1998 SC 128, has lead down the proposition of law regarding summoning of an accused which is reproduced 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 allegations in the complaint 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."
10. With the above said proposition of law, I would like to advert to the facts of the present case. It may be noted that respondent no. 2 appeared as CW-2 and inter-alia reiterated her version as given in the complaint. While appearing as CW-2 respondent no. 2 has testified that on 29.01.2015 she received a call from her father that he was not feeling well and, therefore, on Page 7 of 10 CR No. 336/18 Suman Vs. The State & Anr.
request of her father, respondent no. 2 came at the scene of incident. Respondent no. 2 after seeing her father was returning back but on seeing her, petitioner came out of the house and started abusing her and other family members of respondent no. 2 persuaded the petitioner not to behave in such manner, thereafter Prince, husband of the petitioner came out of the house and started abusing respondent no. 2 and other family members and she was given fist and leg blows by Prince and petitioner. This version as given by respondent no. 2 as CW-2 is duly corroborated by CW-1 Smt.Gulati, who is the maid of respondent no. 2. Therefore, the version of respondent no. 2 is duly corroborated by CW-1 and law with regard to summoning of an accused is well settled that if there is sufficient ground for presuming that the accused person have committed offence as detailed in the complaint ; the accused can be summoned to face those charges. In the present case the Ld. Trial court after going through the matrimonial on record including the statements of CW-1 and CW-2 have summoned accused persons including the petitioner for offences punishable under section 323/506 IPC and I am of the opinion that Ld. Trial court has exercised its power in a judicious manner by taking into Page 8 of 10 CR No. 336/18 Suman Vs. The State & Anr.
consideration settled principle of law for summoning of accused persons.
11. So far as the contention of Ld. Counsel for respondent no. 2 that impugned order is inter-locatory one, suffice is to say that Hon'ble Apex Court in case titled as Rajinder Kumar Sita Ram Pandey Vs. Uttam Singh, 1999 (38) ACC 438 (SC) has mandated that the bar of revision under the provision of sub-section 2 of section 397 Cr.PC against summoning order is not available and it was mandated that order issuing process for summoning the accused is not an inter-locatory order and, therefore, the bar sub section (2) of section 397 Cr.PC would not apply to such order. Therefore, this contention is hererby rejected.
12. From the above discussions, I am of the opinion that Ld. trial court has taken a plausible view of the material on record and I found no ostensible reason to take a different view which has already been taken by trial court. This petition is devoid of merits and deserves to be dismissed and is hereby dismissed and disposed off accordingly.
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Needless to say that nothing stated herein shall tantamount to expression on my opinion on the merits of the case.
Copy of this order be sent to the ld. trial court for the purposes of record. Trial court record be sent back immediately and this file be consigned to record room.
Digitally signed
VIJAY by VIJAY KUMAR DAHIYA KUMAR Date: 2019.01.18 DAHIYA 15:51:37 +0530 Announced in open court (DR.V.K. DAHIYA) on 14.01.2019 SPECIAL JUDGE: CBI (PC ACT) DWARKA COURTS, NEW DELHI Page 10 of 10