Allahabad High Court
Hari Govind Singh And Others vs State Of U.P. And Another on 8 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 535
Author: Ali Zamin
Bench: Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 86 Case :- CRIMINAL REVISION No. - 4895 of 2009 Revisionist :- Hari Govind Singh And Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajiv Gupta,Dileep Kumar,Rajrshi Gupta Counsel for Opposite Party :- Govt. Advocate,P.C. Joshi,Praveen Kumar Singh Hon'ble Ali Zamin,J.
1. Heard Senior Advocate Sri Dileep Kumar assisted by Sri Deepak Kumar learned counsel for the revisionists and Sri Praveen Kumar Singh learned counsel for the opposite party no.2 and perused the record.
2. The present revision has been preferred against the order dated 13.11.2009 passed by Judicial Magistrate-IInd, Varanasi in Criminal Case No.2933/2009 (State vs. Bhola Singh and others) arising out of Case Crime No.10/06, under Sections 498-A, 323, 504, 506 I.P.C. & Section 3/4 Dowry Prohibition Act, Police Station Shirpur, District Varanasi by which the revisionists' application under Section 239 Cr.P.C. seeking for discharge has been rejected and they have been directed to appear personally before the court to frame charge.
3. Learned counsel for the revisionists submits that revisionist no.1 Hari Govind Singh and his wife Abha Singh (revisionist no.2) are permanently residing at Mumbai at the official residence allotted by the Department of Income Tax, Government of India for discharging his duty on different post being Class-I Officer of Indian Revenue Services. Hari Govind Singh is presently posted as Chief Commissioner Income Tax at Sindhia House Mumbai. Revisionist no.3 Smt. Manju Singh is also a house wife, her husband is discharging his duty in the Film Division of Government of Uttar Pradesh. She has two kids. The elder daughter Km. Neha aged about 26 years is a cronic patient of kidney disorder. Her both kidnies collapsed as such her mother Manju Singh had donated her one kidney due to which she is survived being handicap. He has submitted that apparent on the face of allegations no one can believe the demand of dowry by the revisionists. F.I.R. was lodged against the revisionists as well as three charge sheeted persons. After investigation revisionists were not charge sheeted. On submission of the charge sheet against the co-accused persons statement of the informant was recorded before the trial court and on the basis of her statement and on application moved by her under Section 319 Cr.P.C., the revisionists have been summoned. He submits that statement recorded in reference to charge sheeted accused cannot be looked into for framing charge against revisionists, the newly added accused. He further submitted that according to prosecution Rs.5 lakhs were demanded for construction of Vidya Public School situated in Varanasi which does not come within the purview of demand of dowry. In Preeti Gupta & another vs. State of Jharkhand & another, 2010 Law Suit (Supreme Court) 543 complaint was filed under Section, 498-A, 406, 341, 323 and 120-B I.P.C. against appellant no.1 sister-in-law, appellant no.2 brother-in-law and others. Appellant no.1 was a permanent resident of Navasari, Surat, Gujarat and was living with her husband for more than seven years. Appellant no.2 was permanent resident of Goregaon, Maharashtra. Hon'ble Supreme Court quashed the complaint holding that permitting complainant to pursue complaint would be an abuse of process of law. In Geeta Mehrotra & another vs. State of U.P. and another, 2012 Law Suit (Supreme Court) 716, appellant no.1 was sister-in-law and appellant no.2 brother-in-law of the complainant. F.I.R. was lodged by respondent no.2 in appeal under Sections 498-A, 323, 504, 506 I.P.C. and Sections 3/4 of the Dowry Prohibition Act, Hon'ble Supreme Court quashed and set aside the criminal proceeding against the appellants.
4. Learned A.G.A. as well as learned counsel for the opposite party no.2 opposed the contention of the revisionists and submitted that revisionists were summoned by the court concerned vide order dated 28.07.2007 which was challenged in Revision No.388 of 2007. The revision was disposed of by Additional Session Judge, SC/ST Act, Varanasi, who dismissing the revision directed the revisionists to appear before the trial court. The revisional court's order was challenged by revisionists in Writ Petition No.18057 of 2007 which was disposed of vide order dated 08.01.2008, with the observation that the petitioners are the members of the family, who have now been summoned in view of the statement under Section 319 Cr.P.C. It is not disputed that they are well placed in life. In such a situation, it cannot be expected that they would deliberately avoid the court. After all, they have a valuable right to defend themselves. The petitioner nos.2 and 3 are ladies. The petitioner no.1 is a responsible officer and, therefore, keeping in view the aforesaid facts, it is provided that the petitioners shall be permitted to attend court through counsel unless and until their presence is otherwise necessary as per the orders of the court below.
5. He submits that in view of the order of the Hon'ble Court, revisionists moved a discharge application which has been disposed of by impugned judgement and order in which only ground was taken that the incident has been alleged of the date 01.06.2003 and charge sheet has been filed on 04.08.2006. Therefore, the cognizance taken is barred by Section 468 of Cr.P.C. The court considered that the offence of 498-A I.P.C. is continuing offence, therefore, held that the offence is not time barred. Specific allegations have been levelled against the revisionists, so, the finding in the case of Geeta Mehrotra and another vs. State of U.P. another is not applicable in the instant case. The sole ground taken by the revisionists that the cognizance taken is time barred has been negatived rightly by the court below. The contentions which have been raised in this revision were also raised in the earlier revision as well as in the writ petition which were considered and decided against them. Hon'ble Court had given liberty to revisionists to appear through counsel, thereafter, the revisionists moved discharg application through counsel which has been rightly decided by the impugned order, therefore, no ground of interference is made out.
6. In the impugned order learned Judicial Magistrate observing that after marriage Hari Govind Singh (brother-in-law of opposite party no.2) came with his wife Abha Singh on the festival of Deepawali and they demanded dowry and tortured her for the same. In her cross-examination she has stated that on 03.05.2005, Hari Govind Singh and Krishna Govind Singh came to her house and demanded Rs.5 lacs and at page 7 of the cross examination this witness has stated that her brother-in-law Hari Govind Singh his wife Abha Singh and sister-in-law Manju Singh had also demanded dowry and has held that on the appreciation of the whole evidence of P.W.1, it is clear that accused demanded Rs.5 lacs with regard to Vidya Public School and in that regard victim Manorama Singh was harassed by accused, as such, it is clear that the demand comes within the purview of dowry and on the basis of appreciation as a whole has held that from the evidence led by victim Manorama Singh in court as well as case diary produced by Investigating Officer with regard to framing charge against accused Har Govind Singh, Abha Singh and Manju Singh, under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 of the Dowry Prohibition Act, prima facie, sufficient material are available. Accordingly, rejecting the discharge application of revisionist has directed them to appear before the court for framing charge.
7. To respond the contention of learned counsel for the revisionists regarding statement recorded in reference to charge sheeted accused cannot be looked into for framing charge against the revisionists. It will be appropriate to refer the relevant observation of para 11 of Hon'ble Supreme Court in Brijendra Singh and others vs. State of Rajasthan, (2017) 7 SCC 706, which is quoted as under:
"In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word 'evidence' used in Section 319 (1)Cr.P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word 'evidence' has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that 'evidence' under Section 319 Cr.P.C. could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence".
8. In the above referred case Hon'ble Supreme Court has very categorically held that 'evidence' under Section 319 Cr.P.C. could even be examination-in-chief and court is not required to wait till such evidence is tested on cross-examination; in respect of complicity of some other persons not facing trial in the offence. In view of the aforesaid observation of Hon'ble Supreme Court, the contention of learned counsel for the revisionists is misconceived, having no force that statement recorded in reference to charge sheeted accused cannot be looked into for framing charge against revisionists.
9. In Preeti Gupta & another (supra), referred by learned counsel for the revisionist, Hon'ble Supreme Court has held that admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharashtra. they have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband's relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.
10. In reference of Geeta Mehrotra and another (supra), Hon'ble Supreme Court considering that contents of the F.I.R. does not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names has held that it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the F.I.R. does not disclose ingredients of offence under Sections 498-A, 323, 504, 506 I.P.C. and Sections 3/4 of the Dowry Prohibition Act.
11. In the instant case, learned Judicial Magistrate considering the evidence of complainant that revisionists on 03.05.2005 came to her house and demanded Rs.5,00,000/- and in cross-examination too complainant stated that Hari Govind Singh, his wife- Abha Singh and sister-in-law Manju Singh have demanded dowry has held that prima facie case of framing charge against the revisionists is made out.
12. As observed above, facts and circumstances of the referred cases, Preeti Gupta and another (supra) and Geeta Mehrotra and others (supra), differ from the facts and circumstances of the instant case, therefore, on the basis of above referred cases, no benefit can be given to the revisionists.
13. Learned counsel for the revisionists has submitted that apparent on the face of allegation no one can believe demand of dowry by the revisionists. He has also submitted that according to the prosecution Rs.5,00,000/- were demanded for construction of Vidya Public School which does not come within purview of demand of dowry.
14. Learned Judicial Magistrate considering the evidence of complainant arrived to a conclusion that Rs.5,00,000/- were demanded in dowry. Learned counsel for the revisionists has not pointed out that in passing the impugned order learned Judicial Magistrate arrived to the conclusion on account of non consideration of any relevant material or there is palpable misreading of record. He has also not pointed out that the impugned order is perverse or the view taken by the Judicial Magistrate is wholly unreasonable. In Sanjaysinh Ramrao Chavan vs. Dattaray Gulabrao Phalke and others reported in 2015 SCC SC 42, Hon'ble Supreme Court in para 14 of the judgment has held that "unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible".
15. In view of the above discussion and opinion of Hon'ble Supreme Court in Sanjaysinh Ramrao Chavan vs. Dattaray Gulabrao Phalke and others (supra) when the impugned order is not found to have been passed on account of non consideration of any relevant material or palpable misreading of record. The impugned order is also not found perverse or the view taken by the Judicial Magistrate is wholly unreasonable, this Court will not be justified in interfering with the impugned order which has been passed by the court concerned considering the evidence before it taking a view that Rs.5,00,000/- were demanded by the revisionists in dowry and passed the impugned order.
16. Learned counsel for the revisionists has not controverted the submission of learned counsel for the opposite party no.2 that in discharge application, the only ground was taken that cognizance is barred by Section 468 of Cr.P.C. which has been decided against the revisionists. Learned counsel for revisionists has also not controverted the contention of learned counsel for the opposite party no.2 that the contentions raised in this revision were already taken in earlier revision as well as writ petition and decided against them.
17. In view of the above discussion, revision has no force. Therefore, no interference is warranted by this Court as such it is liable to be dismissed. Accordingly, it is dismissed.
Order Date :- 8.1.2020 Jitendra