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Allahabad High Court · body

2004 DIGILAW 187 (ALL)

MUKESH RASTOGI v. DEEKSHA RASTOGI

2004-01-30

K.N.OJHA

body2004
K. N. OJHA, J. Instant revision has been preferred against order dated 13-11-2000 passed by learned Chief Judicial Magistrate, Allahabad in F. R. No. 177 of 2000 summoning the accused revisionists to face the trial under Sections 498-A, 504 and 506 IPC and Section 3/4 of Dowry Prohibition Act. 2. Heard Sri Shyamal Narain, learned counsel for the revisionists, Sri R. R. K. Mishra learned A. G. A. and Sri Sanjeev Ratan, learned Counsel for opposite party No. 1 and have gone through the record. 3. The fact of the case is that Smt. Deeksha Rastogi moved application under Section 156 (3) of Code of Criminal Procedure in the Court of Chief Judicial Magistrate, Allahabad for investigation against the revisionist which was allowed on 16-2- 2002 FIR of Smt. Deeksha Rastogi was registered at crime No. 19 of 2000 under the above mentioned sections at police station Civil Lines, Allahabad containing the fact that she was married with revisionist No. 1 Mukesh Rastogi on 21-1-1996 in New Delhi. Maruti car, cash, ornaments, furniture, electronic goods etc. were given in the marriage, but her husband Mukesh Rastogi, revisionist No. 1, mother-in-law Smt. Kanta Rastogi, revisionist No. 2, Jyestha Kamal Rastogi, revisionist No. 3, Jyethani Smt. Kiran Rastogi, revisionist No. 4, another Jyestha Kailash Mohan Rastogi, revisionist No. 5 and another Jyethani Smt. Sushma Rastogi, revisionist No. 6 were not satisfied with the presents given in the marriage. After the marriage she went to the residence of her husband and started to live in Krishna Nagar, Delhi. Revisionists started to make demand of Rs. 7 lacs and the demand being not satisfied, they started to cause torture. On 11- 10-1997 these persons caused injuries with kicks and fist causing fracture to both of her knee and she was expelled from the house. She send information to her brother who lives in Keshipur, Udham Singh Nagar. Since before one year, the FIR was lodged, she has been living at the residence of her sister Smt. Madhu Rastogi at Stretchy Road, Civil Lines, Allahabad. It is said that on 23rd January, 2000 her husband came to the residence of her sister in Allahabad, caused injuries to her and threatened with dire consequence in case she would not go to Delhi along with money demanded. 4. It is said that on 23rd January, 2000 her husband came to the residence of her sister in Allahabad, caused injuries to her and threatened with dire consequence in case she would not go to Delhi along with money demanded. 4. After investigation, final report was submitted but Smt. Deeksha Rastogi filed protest petition on which the learned Chief Judicial Magistrate, Allahabad directed that final report could not be accepted and the case would proceed as complaint case. Statement of Smt. Deeksha Rastogi was recorded under Section 200 Cr. P. C. and one witness Smt. Madhu Rastogi under Section 202 Cr. P. C. and impugned order dated 13-11-2000 was passed and the revisionists were summoned to face the trial. 5. Learned Counsel for the revisionists submits that the statement under Sections 2000 and 202 Cr. P. C. has been made in respect of two occurrence. One relates to 11-10-1997 which is said to have taken place in New Delhi in which all the revisionists were involved, but no FIR was lodged at that time nor medical examination of injuries was got done. The another occurrence relates to 23-1-2000 in which it is said that injuries were caused by the revisionist No. 1 Mukesh Rastogi to Smt. Deeksha Rastogi at Allahabad. It is submitted by the learned Counsel for the revisionists that both the incidents relate to different time and place and there is sufficient gap of time so both the occurrence cannot be said to be in continuation of each other. It is also submitted that occurrence dated 11-10-1997 is said to have taken place in New Delhi and the Court of Chief Judicial Magistrate, Allahabad has no territorial jurisdiction to try the case except revisionist No. 1 Mukesh Rastogi. Other revisionists have no concern with the occurrence which is said to have taken place at the residence of the sister of Smt. Deeksha Rastogi on 23rd January, 2000 in Allahabad. Thus, it is submitted that the revisionists Nos. 2 to 6 cannot be summoned by the Chief Judicial Magistrate, Allahabad to face the trial in respect of the alleged occurrence which is said to have taken place in the year, 1997. This contention is opposed by the learned Counsel for opposite party No. 1. It is submitted that at the stage of summoning the accused under Section 204 Cr. This contention is opposed by the learned Counsel for opposite party No. 1. It is submitted that at the stage of summoning the accused under Section 204 Cr. P. C. only prima facie, evidence is to be considered which is sufficient for summoning the revisionist. 6. In AIR 1992 SC, 1815 Punjab National Bank v. Surendra Prasad Sinha, it has been held by Honble the apex Court that" relevant fact and circumstances should be considered before issuing the process under Section 204 Cr. P. C. The process issued mechanically on the basis of the complaint filed as vendetta to harass persons deserves to be quashed because judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process test it would be an instrument in the hands of private complainant as vendetta to harass persons needlessly. " 7. In 1976 SCC (Criminal), 507 Smt. Nagawwa v. V. S. Konjalgi and others, it has been held by Honble the apex Court that "in a proceeding under Section 202 Cr. P. C. the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It is not the power of the Magistrate to enter into the merit or demerit of the case nor the High Court can go into this matter in its revisional jurisdiction which is very limited one. It is not the power of the Magistrate to enter into the merit or demerit of the case nor the High Court can go into this matter in its revisional jurisdiction which is very limited one. Once the Magistrate has exercised its discretion, it is not for the High Court or even Supreme Court to substitute its own discretion for that of Magistrate or to examine the case on merit with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused but such order passed by the Magistrate can be quashed if the complaint does not disclose essential ingredients of an offence which is alleged against the accused or where the allegations made in the complaint are patently absurd or inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the Magistrate in issuing process or is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible or where the complaint suffers from fundamental legal defects, such as want of sanction or absence of complaint by legally competent authority. " 8. Thus, the Honble the Apex Court has made the law clear that if any order summoning the accused is passed while the Court lacks inherent jurisdiction, such order cannot be held valid and it causes harassment to the accused and the Court being legally not competent, the order will be capricisous and arbitrary causing injustice to the accused. In this case, when the revisionists 2 to 6 are resident of Delhi and the occurrence is said to have taken place in Delhi in the year, 1997 and they had to come to Allahabad to participate in the occurrence dated 23-1- 2000, to make trial of revisionists 2 to 6 in the Court of the Chief Judicial Magistrate, Allahabad will be a trial without jurisdiction against revisionists 2 to 6. Such proceedings of the case against the revisionists 2 to 6 will be an abuse of process of law. Therefore, the impugned order passed against revisionists 2 to 6 deserves to be set aside. 9. So far as the case against Mukesh Rastogi is concerned, he is husband of Smt. Deeksha Rastogi, opposite party No. 1. Such proceedings of the case against the revisionists 2 to 6 will be an abuse of process of law. Therefore, the impugned order passed against revisionists 2 to 6 deserves to be set aside. 9. So far as the case against Mukesh Rastogi is concerned, he is husband of Smt. Deeksha Rastogi, opposite party No. 1. His arrival and dispute, if any, on 23-1-2000 at the residence of the sister of Opposite party No. 1 Smt. Deeksha Rastogi at Allahabad, at this stage cannot be said to be un-natural or improbable. It will depend upon the evidence and circumstance of the case as upto what extent there is truth in the allegation in respect of the alleged occurrence dated 23-1-2000 at Allahabad. The occurrence which is said to have taken place in the year, 1997 in New Delhi is not in continuation of the occurrence dated 23-1- 2000 at Allahabad. Thus, Mukesh Rastogi has to appear in the Court of Chief Judicial Magistrate, Allahabad to face the trial in respect of the occurrence dated 23-1-2000 in accordance with the provision of Code of Criminal Procedure. Neither FIR was lodged or injury, if any, was got examined by Smt. Deeksha Rastogi, opposite party No. 1 in respect of the occurrence dated 11- 10-1997. Therefore, Mukesh Rastogi is not liable to face trial at Allahabad in respect of the occurrence which had taken in New Delhi in the year, 1997. 10. Learned Counsel for the revisionists submits that first Mukesh Rastogi filed a case under Section 9 of the Hindu Marriage Act. In reply Smt. Deeksha Rastogi, opposite party No. 1 lodged FIR against him and his family members including the ladies. Thereafter, complaint under Section 9 of the Act was withdrawn by Mukesh Rastogi and petition for divorce was filed in the Court of Delhi in which Smt. Deeksha Rastogi moved application for transfer of the case from New Delhi to Allahabad. It is said that the proceedings of the divorce case is stayed under the order of Honble the Apex Court. It is further submitted that there is self contradiction in the statement of Smt. Deeksha Rastogi and she was not present at Allahabad on 23-1-2000. It is said that the proceedings of the divorce case is stayed under the order of Honble the Apex Court. It is further submitted that there is self contradiction in the statement of Smt. Deeksha Rastogi and she was not present at Allahabad on 23-1-2000. If there is any such infirmity, weakness or self contradiction in the version or statement of Smt. Deeksha Rastogi, this plea may be pressed at the appropriate stage when the case proceeds against revisionist No. 1 in the Court of C. J. M. , Allahabad or in any other Court where the case is transferred by the C. J. M. in District Allahabad, but at this stage when prima facie case is to be considered, the fact alleged in the FIR lodged by Smt. Deeksha Rastogi and the statement recorded under Sections 200 and 202 Cr. P. C. are sufficient to make out prima facie case against Mukesh Rastogi in respect of occurrence at Allahabad under Sections 498-A, 323, 504 and 506 IPC and Section 3/4 of Dowry Prohibition Act and, therefore, the learned Chief Judicial Magistrate, Allahabad has not committed any jurisdictional error, illegality or material irregularity while summoning Mukesh Rastogi, revisionist No. 1 to face the trial under above mentioned sections in respect of the occurrence at Allahabad. It will be open to Mukesh Rastogi, Revisionist No. 1 to take plea of discharge at appropriate stage as contemplated in Code of Criminal Procedure which may be decided by the concerned Magistrate considering the evidence and circumstances of the case in accordance with law, but at this stage, the impugned order summoning Mukesh Rastogi revisionist No. 1 cannot be held to be illegal and does not call for any interference by this Court. 11. In view of the above discussion, the impugned order dated 13- 11-2000 summoning the revisionists 2 to 6 Smt. Kanta Rastogi, Kamal Rastogi, Smt. Kiran Rastogi, Kailash Mohan Rastogi and Smt. Sushma Rastogi is set aside and it is held that complaint cannot proceed under abovementioned sections against revisionists 2 to 6 named above in the Court of Chief Judicial Magistrate, Allahabad or any other Judicial Magistrate of District Allahabad, but the revision of Mukesh Rastogi, revisionist No. 1 is dismissed accordingly. Revision allowed. .