Allahabad High Court
Sohan Singh And Others vs State Of U.P. & Another on 14 September, 2012
HIGH COURT OF JUDICATURE AT ALLAHABAD ?In Chamber Reserved Case :- CRIMINAL REVISION No. - 5441 of 2010 Petitioner :- Sohan Singh And Others Respondent :- State Of U.P. & Another Petitioner Counsel :- J.S.Pandey Respondent Counsel :- Govt. Advocate,R.P.Dwivedi Hon'ble Virendra Vikram Singh,J.
Challenge in the present revision is the order passed by the Judicial Magistrate, Court No. 2 Agra, dated 9th September, 2010, whereby the revisionists have been summoned to face trial for the offence punishable under sections 498-A IPC and ¾ of the Dowry Prohibition Act.
The facts giving rise to the present revision are that Shrimati Rajni presently O.P. no. 2, on 11.3.2010, filed an application under section 156(3) of the Code of Criminal Procedure, 1973, which shall hereinafter be referred to as 'Cr.P.C', with the prayer for the registration of the criminal case against the present revisionists with the facts that she was married with Sohan Singh, present revisionist no. 1 on 14.5.2007. After the marriage, the accused persons, who are the husband, parents-in-law, sister-in-law (Nanad), Brother-in-law (Jeth) extended the dowry demand in terms of one Motorcycle, Colour T.V., Refrigerator, which her parents could not fulfill. On account of non-fulfillment of dowry demand, she was maltreated and assaulted. On 13.8.2008, revisionist no. 5 dropped her to her parental house. Later on, under the assurance of good behavior, and non repetition of any dowry demand, she was taken back to her in-laws house on 13.9.2008. The assurance so extended by the accused did not prove and soon thereafter, the demand of dowry and maltreatment to Rajni Singh continued. Lastly on 9.12.2009, the accused persons after assaulting her, kicked her out of her of their house and also extended threats to her life. Thus the complainant, O.P. no. 2 was forced to live with her parents. She also attempted to lodge the report at the concerned police station but failed. It is also mentioned that Ganesi Lal and Karan Singh are the witnesses of the incident.
The application filed by the opposite party No. 2 under section 156(3) of Cr.P.C., was treated as a complaint. In pursuance to the order of the court Smt. Rajni examined herself under section 200 Cr.P.C. Later on Ganesi Lal and Karan Singh were examined as witnesses under the provisions of Section 202 Cr.P.C.
Even though the sections mentioned in the application moved by Smt. Rajni bear sections 498-A, 323, 504, 506 IPC and Section ¾ of the Dowry Prohibition Act, but the trial court while passing the impugned order summoned the accused-persons/present revisionists to face trial for offences under sections 498-A IPC and ¾ of the Dowry Prohibition Act while holding that no offence under sections 323, 504 and 506 IPC appears to have been made out against any of the accused.
Feeling aggrieved by the order dated 9.9.2010, the present revision has been filed.
In the present case, before the arguments could be heard an attempt was made by the Court for reconciliation of the matter between the parties. The mediation between the parties has failed and they could not arrive at any solution. Since the mediation between the parties failed, the revision was heard on merits.
On behalf of the revisionist, it has been argued that the relations of Smt. Rajni O.P. no. 2 with her husband were bitter and they could not lead a successful married life. It is the case of the hostility between the parties that on the basis of a false and concocted story, all the members of the family including the married sister of Sohan Singh were arrayed as accused. It has also been argued that the accused-persons presently respondents no. 4 and 5 live separately and in no case their participation in the present case can be inferred.
It has also been argued that from the evidence adduced no case worth recording the conviction against the accused-revisionist can be inferred and the impugned order is illegal and is liable to be set aside.
Learned AGA for the State has supported the order of the trial court.
The provisions for summoning any person to face the trial has been incorporated in section 204 of the Code of Criminal Procedure, which provides that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient grounds for proceeding against the accused, he may summon the accused as per the procedure provided.
The question involved in this revision is what should be the test for evaluating the evidence, while passing an order for summoning any person to face trial and further whether the evidence before the Magistrate fulfilled that test?
Section 203 of the Code provides the cases in which the Magistrate can dismiss the complaint. Sec.204 of the Code provides for summoning the accused to face trial. The composite effect of sections 203, 204 of the Code is that where the Magistrate on the basis of the evidence, which is before him, finds that there are sufficient grounds for proceeding he will summon the accused persons to face trial and if there is no such ground to record such satisfaction or that no case is made out he shall proceed to pass an order for dismissing the complaint.
It is settled legal position that at the stage of passing the order under Section 203, 204 Cr.P.C for summoning the accused or to dismiss the complaint, the Court has only to see the existence of prima facie case and not whether the evidence so adduced is to result in conviction of the accused-persons. Thus at the time of passing the summoning order, the Magistrate has only to see whether a prima facie case is made out or not and the evidence before him should not be weighed to examine whether any conviction can be recorded.
Thus, in order to summon the accused persons or to dismiss the compliant, the Magistrate has not to examine the case meticulously as the same will be examined at the time of finally deciding the case.
In the case Nirmal Jeet Singh vs. State of West Bengal and another 1973 (10) ACC page 181, the Hon'ble Apex Court while considering the scheme of chapter XV Cr.P.C has held that the section does not say that a regular trial for adjudicating truth or otherwise of the person complained against should take place at that stage and such person can be called upon to answer the accusation made against him only when a process has been issued for facing the trial.
In the case of Chandra Dev Singh vs. Prakash Chandra Bose 1964 (1) SCR page 639 the Hon'ble Supreme Court has held that at the stage of inquiry under section 202 Cr.P.C., the test was whether there for sufficient grounds for proceeding and not whether there was sufficient ground for conviction.
Again in the case of S.W. Parlanitikar and others vs. State of Bihar and another 2002 (1) JIC page 232, the Hon'ble Supreme Court has held that at the stage of Section 200, 203 Cr.P.C searching sufficient ground to convict is not necessary.
The issue involved in the present revision has again being discussed and resolved by the Apex Court in the case of Minu Kumari and another vs. State of Bihar and others (2006 (5) ACC 541)All India Institute of Medical Sciences Employees' Union 1996(2) SCC 582, the Apex Court held as follows. While relying upon the judgment in the case of "If he (Magistrate) finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused.
In view of the legal proposition quoted above, it is evident that while passing the order summoning the accused in pursuance of a complaint, the inquiry has to be contemplated whether there are sufficient grounds to proceed against the accused and the court is not required to evaluate the evidence as the same will be examined at the time of final decision of the case.
In the present set of facts Smt. Rajni is the wife of Sohan Singh revisionist no. 1 and the other revisionist are the own family members of Sohan Singh. Smt Rajni Singh and her witnesses had categorically mentioned that all the accused persons extended the dowry demand and for non-fulfillment of dowry demand she was maltreated and subjected to cruelty. In the present set of facts the Court does not see any reason or justification to record any distinction in the case against different accused persons. At the same time at this stage when the Court has simply to see whether there are sufficient grounds for proceeding against the accused persons, the probabilities in favour of either of the parties can also not be adhered to at this stage. There is no evidence available at all at this stage that the accused-persons revisionists no. 4 and 5, used to live separately and were not connected with the occurrence in question. However this may be an issue to be probed during trial of the case.
Thus under the circumstances and the evidence available a prima facie case appears to have been made out. There does not appear any illegality or perversity in the impugned order which deserve to be upheld. The revision definitely lacks merit and is liable to be dismissed.
The revision is hereby dismissed.
The interim order, if any, stands vacated.
Order Date :- 14.9.2012 Sumaira