Allahabad High Court
Chandraveer And Others vs State Of U.P. And Another on 13 July, 2010
Author: Virendra Singh
Bench: Virendra Singh
Court No. - 25 Case :- CRIMINAL REVISION No. - 4720 of 2005 Petitioner :- Chandraveer And Others Respondent :- State Of U.P. And Another Petitioner Counsel :- Akhilesh Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Virendra Singh,J.
This revision has been preferred by Sri Chandraveer and others against the judgement and order dated 10th August, 2005 passed by Judicial Magistrate, I, Aligarh in Criminal Case No. 200 of 2004, Arvind Vs. Chandraveer and others, whereby the learned Magistrate summoned the revisionists as accused for the offence under sections 120-B, 406 and 495 I.P.C Heard Sri Akilesh Srivastava, learned counsel for the revisionists, Sri Anwar Husain, learned counsel for respondents No2 and learned A.G.A on behalf of State of U.P. It is submitted on behalf of revisionists that impugned order is against the evidence available on record and is not sustainable being bad in the eyes of law because the learned Magistrate summoned the revisionists merely on the statements recorded of complainant under sections 200 and two other witnesses under section 202 Cr.P.C. and on the basis of one notarial marriage certificate of Lalita Devi with Pratap on record. The marriage of revisionist No. 4 Smt Lalita was solemnized with complainant/opposite party No.2 Arvind son of Ram Singh on 21.2.1999 and on the basis of a notarial marriage certificate, the learned Magistrate wrongly relied that she was earlier married with Pratap. The learned Magistrate did not see the other document pertaining to Habeas Corpus Petition filed by Pratap in this Court wherein the revisionist No. 4 Lalita Devi denied of her marriage with Pratap and a detailed order in this regard was passed by Hon. S.K. Phaujdar, J. of this Court. After the marriage of revisionist No. 4 she was tortured by respondent No. 2 and she was ousted from his house. She had filed an application under section 125 Cr.P.C for maintenance, so thereafter this criminal complaint in which the impugned order is passed, was filed against all the family members of Lalita. In fact prior to marriage of revisionist No. 4 with respondent No.2, respondent No.4 was never married with Pratap and merely to damage the social reputation of the family of the revisionist, Pratap had filed a Habeas Corpus Petition with fake allegations on the basis of a Notarial marriage certificate on which this Court gave finding that no marriage was solemnized of revisionist No. 4 with Pratap . The allegations that the revisionist No. 4 had taken away all the jewellery and the cash of Rs. 50,000/- with her is totally false and the learned lower court committed manifest error of law thereby passing the impugned order for summoning the revisionist. It is also contended on behalf of revisionist that a case for maintenance as per provisions under section 125 Cr.P.C and a case for the offence under section 498A I.P.C is pending against the respondent No. 2 filed by revisionist No. 4.
Learned counsel for the respondent submitted that the aforesaid cases for maintenance under section 125 Cr.P.C and for the offence under section 498- A have been filed by the revisionist as counter blast because the respondent No. 2 had already filed a criminal case for the offence under section 120-B, 406, 495 I.P.C in which this order dated 10th of August, 2005 is said to be impugned in this revision. It is further contended that the habeas corpus petition was dismissed merely on this ground that because Lalita had refused to go with the petitioner Pratap.
In the light of the contentions of both the parties, I have gone through the entire facts and circumstances of this case. The impugned order reveals that on the basis of the statement of the complainant as per provisions under sections 200 and the statements recorded as per provisions under section 202 Cr. P. C and the documentary evidence regarding the F.I.R, photocopy of Notarial marriage certificate, the statement under section 164 Cr.P.C and the copy of the application sent to S.S.P, the learned Magistrate found a prima facie case made out for the offence under section 120-B, 406 and 495 I.P.C against the accused/revisionists Chandraveer, Puspendra, Smt Raj Kumari, Smt Lalita and Brij Mohan, who have been summoned by the learned Magistrate vide impugned order dated 10th of August, 2005. The criminal complaint before the Magistrate in this regard remained for the facts that all the accused/revisionist under a conspiracy got married the revisionist No. 4 with respondent No. 2 on 21.2. 1999. Thereafter on 9.6.2002 the brother of revisionist No.4 named Puspendra came to the house of complainant/respondent No.2 stating that his mother was seriously ill and he carried the revisionist No. 4, Smt. Lalita Devi with him. Lalita had taken away with her all the golden ornaments and a sum of Rs. 50,000/-. Later on all the revisionists have refused to send Smt. Lalita Devi with respondent No 2, who after some time on 8th October, 2002 filed a marriage petition for restitution of conjugal rights. Later, the respondent No. 2 came to know that revisionist shall not send Smt. Lalita Devi with respondent No.2 because they all are ever remained in habit for sending Smt. Lalita Devi earlier too with another 2-3 persons for collecting the property of those persons and thereafter to deny to send Smt. Lalita Devi with them.
Regarding summoning of the accused as per provisions under section 204 Cr.P.C, the law is very well know as is follows.
'' The law relating to dismissal of complaint under section 203 Cr.P.C. or issue of process against accused persons as per provisions under section 204 of Cr.P.C. is very much clear as is held in various decisions of Hon'ble Apex court, as wall as of various High Courts. The Magistrate shall dismiss the complaint, if he finds that no offence has been committed or if he distrusts the statement of the complainant and his witness examined and he shall also dismiss the complaint, if on a consideration of a result of inquiry or investigation, if any under section 202, he thinks that there is no ground for proceeding. If bare perusal of a complaint or the evidence shows that essential ingredients of the offence alleged are absent or that the dispute is only of a civil nature or based on such patent absurdities in evidence that it would be waste of time to proceed further, the complaint could be dismissed. The words "sufficient ground for proceeding" found in section 203 Cr.P.C. show that all the Magistrates are expected to see, whether there are sufficient grounds for proceeding against the accused for an offence and at that stage, he can not go into the truth or otherwise of the allegations made in the complaint. The standard of proof required at the stage of inquiry is not the same, which is expected from the complainant during trial. The only thing is to be considered is whether there is a prima facie evidence of a criminal offence. Sufficient ground do not mean sufficient ground for conviction, but such evidence as would be sufficient to put the accused upon trial. If the Magistrate thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. The wide discretion has been given, as to grant or refusal of process, to the Magistrate and it must be judicially exercised. A person ought not be dragged into court merely because the complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it can not be refused merely thinking that it is unlikely to result in a conviction. The reasonable view is that if all things considered and a prima facie case is made out, the person charged ought to be put on his trial, so that it may appear to the complainant that justice is being done. At this stage the result of the trial is no concerned of the court. Contradictory statements of witness/witnesses has to be tested for it's truthfulness for acceptance or negation. Of-course, if the allegations made in the complaint do not disclose any offence, the Magistrate can not summon the accused persons but when the allegations contained in the complaint disclose the offence and the same allegations have been substantiated by the evidence of the witness examined under section 200 and 202 Cr.P.C. and the Magistrate is satisfied with that trial should proceed against the accused persons, the order of the Magistrate for summoning the accused persons in such circumstances is very much perfect. Judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretions and should take all relevant facts and circumstances into consideration while issuing process, lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly''.
Looking in to the entire facts and circumstances and law as is narrated above, I am of this view that since there remained some disputes with regard to marriage in between the parties pertaining to rival facts as to whether respondent No.2 ousted the revisionist No.4 entitling her for maintenance and the complaint of her harassment and torture by her husband or for the facts that the revisionist No. 4 was earlier married to someone else as is projected through notarial certificate alleging the case for conspiracy against all the revisionist for the marriage of revisionist No.4 with respondent No.2, merely on such dispute any offence is made out, it prima facilely may not be presumed.
The offence under section 120-B I.P.C deals with Punishment of criminal conspiracy which is defined under section 120-A I.P.C stating that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Taking this definition with the fact of the complaint filed by respondent No.2 against the revisionist pertaining to the second marriage of revisionist No.4 with respondent No.2 thereby hiding the fact of earlier marriage, discloses no offence of 494 I.P.C pertaining to remarriage alleged because as per provisions under section 494I.P.C, marrying again during life time of husband and wife is an offence merely against the wife or the husband, whoever may be marrying against having spouse living. In this case in hand, the complainant/respondent No. 2 has himself stated in the complaint that he had collected the evidence pertaining to the marriage of revisionist No.4 with one person named Pratap before the marriage of her with the complainant but the notarial certificate in this regard brought on record and the Habeas Corpus Petition filed by another person namely Pratap and the order of this Court on that petition, nowhere revealed any valid marriage of revisionist No.4 with Pratap. Therefore, no prima facie case of remarriage in the state of living spouse is established showing any offence and, therefore, the marriage solemnized by the revisionist No.4 with the complainant/respondent No.4 can not be termed even prima facie a case of conspiracy. Therefore, the summoning of the accused persons in this regard for the offence under section 120-B I.P.C is itself illegal.
So far as the offence under section 406 I.P.C is concerned, the fact of the complaint shows that the revisionist No. 4 is alleged to have been taken away with her the ornaments. There is no mention in the complaint case that a some of Rs. 5,0,000/- was also taken away by the revisionist with her. The ornaments prima faciely may be the property of a woman being STREEDHAN of a married woman. There is no case that the alleged ornaments remained the personal property of the complainant. There is no case too that such ornaments were ever entrusted to Lalita Devi or any other accused of this case or at any time were demanded by the complainant from them and they refused to hand over the ornaments to the complainant. Even there is no case on record that any divorce is arrived in between the parties. Therefore, taking away the ornaments by Lalita Devi with her in the presence of the complainant at the time of going with her brother to her maternal house, nowhere, even primafaciely, establishes any case of 406 I.P.C, for which it is essential that the property should be entrusted to some one owned by other and that person should misappropriate dishonestly that property for his own use. In the absence of the fact that the ornaments were entrusted by the complainant to Lalita Devi and the complainant was the sole owner of the ornament and in the absence of this fact that Lalita Devi has misappropriated the ornaments, even primafaciely no case of under section 406 I.P.C is made out. Therefore, the summoning of the accused for this offence also is illegal.
So far as the question of offence under section 495 I.P.C is concerned, prima facie case for this offence is also not made out against the revisionists. Section 495 I.P.C deals with that whoever commits the offence defined in sections 494 I.P.C, having concealed, from the persons with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punishable. Here in this case, since the facts of second marriage does not establish against the revisionist No.4 therefore, the offence under section 495 I.P.C is also not made out against any of the accused.
In the state of affairs as above, I am of this view that the learned Magistrate committed manifest error thereby finding that prima facie case against the accused/revisionists for the offence under sections 120-B, 406, 495 I.P.C is made out. Therefore, I do find substance in this revision which deserves to be allowed and is hereby allowed accordingly thereby setting aside the impugned order.
Order Date :- 13.7.2010 G.S