Allahabad High Court
Mumtaz Ahmad And Others vs The State Of U.P And Another on 3 January, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- U/S 482/378/407 No. - 4576 of 2010 Applicant :- Mumtaz Ahmad And Others Opposite Party :- The State Of U.P And Another Counsel for Applicant :- Prem Chand Gupta Counsel for Opposite Party :- Govt. Advocate,Q.M. Asad Rafi,Shaquiel Ahmad Hon'ble Dinesh Kumar Singh,J.
The present petition under Section 482 Cr.P.C. has been filed against the order dated 16.8.2010 passed by the Judicial Magistrate-II, Balrampur in Case No.608 of 2007, under Section 498-A IPC and Section 3/4 Dowry Prohibition Act. Vide impugned order, the learned Magistrate has summoned the petitioners under Section 319 Cr.P.C. as an additional accused to face trial for offences under Section 498-A IPC and Section 3/4 Dowry Prohibition Act.
Respondent no.2 got married with petitioner no.5, Meraz Ahmad on 31.7.1996. Out of wedlock, two sons were born from respondent no.2. Respondent no.2 filed an application under Section 156(3) Cr.P.C. before the learned Judicial Magistrate-II, Balrampur on 4.8.2007 alleging that petitioner no.5 used to torture respondent no.2. He was demanding Rs.50,000/- as additional dowry. When the demand of dowry was not fulfilled as the parents of respondent no.2 were not well off, he threw acid on her. All allegations in the application are against petitioner no.5 regarding demand of dowry and torture. Even in the statements under Sections 200 and 202 Cr.P.C. allegations have been made against petitioner no.5.
Considering the complaint and the statements of respondent no.2 and the witnesses under Sections 200 and 202 Cr.P.C., learned Magistrate vide order dated 1.11.2007 summoned petitioner no.5 only under Section 498-A IPC and Section 3/4 Dowry Prohibition Act.
It appears that respondent no.2 in her statement under Section 244 Cr.P.C. improved her case and said that petitioners no.1 to 4 were also involved in demanding the dowry and throwing acid on her. However, she did not go to any doctor for her treatment in respect of injuries from acid attack.
After statement of the complainant and the witnesses were recorded under Section 244 Cr.P.C., an application under Section 319 Cr.P.C. was filed for summoning petitioners no.1 to 4 as additional accused. Learned Magistrate finding no other evidence except the improved version of the complainant and the witnesses under Section 244 Cr.P.C., rejected the said application vide order dated 4.9.2008. Against the order rejecting the application under Section 319 Cr.P.C. to summon petitioners no.1 to 4 as additional accused, respondent no.2 filed Criminal Revision No.204 of 2008 before the learned Session Court. Learned Session Court vide order dated 16.3.2009 has set aside the order dated 4.9.2008 passed by the learned Magistrate and has directed the learned Magistrate to decide the application under Section 319 Cr.P.C. in accordance with law afresh.
It is relevant to mention here that the petitioners were not made parties in the revision. On remand, learned Magistrate has passed the impugned order summoning petitioners no.1 to 4 under Section 319 Cr.P.C. to face trial as additional accused for offences under Section 498-A IPC and Section 3/4 Dowry Prohibition Act on the basis of the statements of the complainant/respondent no.2 and the witnesses under Section 244 Cr.P.C.
Marriage of respondent no.2 marriage was performed with petitioner no.5 in the year 1996. She filed an application under Section 156(3) Cr.P.C. almost 11 years after her marriage alleging demand of dowry and harassment to her mainly by petitioner no.5. Even in her statement under Section 200 Cr.P.C. she did not make any allegation against petitioners no.1 to 4. However, in the statement recorded under Section 244 Cr.P.C. she improved her case and made allegation against petitioners no.1 to 4.
Learned Magistrate initially did not find substance in the application under Section 319 Cr.P.C. and, therefore, rejected the said application. However, learned revisional court had remanded the matter back to the learned Magistrate to consider the case afresh in the light of the allegations made in the complaint and, the statements of the complainant and the witnesses recorded under Section 244 Cr.P.C. and, the learned Magistrate vide impugned order, summoned petitioners no.1 to 4 on the application filed under Section 319 Cr.P.C. as additional accused to face trial for offences under Section 498-A IPC and Section 3/4 Dowry Prohibition Act.
It is well established that power of Section 319 Cr.P.C. is to be exercised sparingly and in exceptional circumstances where there is cogent and credible evidence available against the persons, who are to be summoned as additional accused.
In the present case, except for the improved version of the complainant and the witnesses in their statements under Section 244 Cr.P.C., there was no material or evidence, which could be termed as credible and cogent against petitioners no.1 to 4 to summon them as additional accused. The power under Section 319 Cr.P.C. should not be exercised as a matter of course. The complainant in the application under Section 156(3) Cr.P.C. as well as in her statement under Section 200 Cr.P.C. and the witnesses under Section 202 Cr.P.C. did not make any specific allegation of torture and harassment by petitioners no.1 to 4 for demand of dowry. Learned Magistrate ignoring all these aspects and without there being any credible and cogent evidence, summoned petitioners no.1 to 4 as additional accused. Therefore, I am of the view that the impugned order passed by the learned Magistrate is unsustainable and suffers from illegality and, it is against the spirit of the provisions of Section 319 Cr.P.C.
Thus, the petition is partly allowed and the order dated 16.8.2010 passed by the Judicial Magistrate-II, Balrampur in Case No.608 of 2007, under Section 498-A IPC and Section 3/4 Dowry Prohibition Act, is hereby set aside in respect of petitioners no.1 to 4 only. It is made clear that there is no order in favour of Meraz Ahmad, petitioner no.5.
Let a copy of this order be communicated to the court concerned.
Order Date :- 3.1.2020 Rao/-