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Allahabad High Court · body

2008 DIGILAW 2759 (ALL)

SHAMSHER v. STATE OF U. P.

2008-12-19

S.N.H.ZAIDI

body2008
JUDGMENT S.N.H. ZAIDI, J.-Both these revisions have been directed against the order dated 31.7.2006 passed by Chief Judicial Magistrate, Jaunpur in Misc. Case No. 250/2004, Smt. Shakura Begum v. State and ot1ters whereby final report No. 4 of 2004 dated 4.8.2004 filed in respect of case Crime No. C-1/2004 under sections 498-A, 304-B, 201, I.P.C. of police station Sureri, Jaunpur has been rejected and the protest petition dated 28.2.2005 filed against the. same has been accepted and 12 persons, including the revisionists of both the revisions, have been summoned to face trial under sections 498A, 304-B and 201, I.P.C. 2. The facts which are relevant for the purpose of these revisions, in brief, are that Smt. Fatima D/o Smt. Shakura Begum was married with Munawar on 15.6.1996 and she died on 11.5.2003 at her matrimonial home. On 14.5.2003 an application was given by Aziz, the father of the deceased, to S.S.R Sant Ravidas Nagar (Bhadohi) against 12 persons with the allegations that after the marriage Smt. Fatima was subjected to cruelty at the hands of her husband and his relatives including his parents, brothers and sisters for not bringing sufficient dowry and due to non-fulfilment of the demand of Rs. 10,000, a colour TV, a golden ring and a Tape recorder she had been killed by them as well as by their neighbours and friends. On that application, an inquiry was held by the C.O. of Madhiyahun, Jaunpur who had submitted his report dated 6.2•.2004 to the S.S.P. Jaunpur with his findings that Smt. Fatima had died due to illness on 10.6.2003 and the parties had arrived at a compromise which was filed at police station Sureri, Jaunpur and was entered at G.D. No. 9 dated 11.6.2003 and the allegations in the complaint are false. Smt. Shakura Begum moved an application under section 156(3), Cr.P.C., on 20.3.2004 before Additional C.J.M. about Court No. 16, Jaunpur against all the 12 persons with the same allegations as were made by her husband Aziz in the aforesaid application dated 14.5.2003. The learned Magistrate allowed that application and ordered for registration of the report and investigation of the case. The report was lodged at Crime No. C-1/2004, under sections 498-A, B04-B and 201, I.P.C. and was investigated upon by the police. The learned Magistrate allowed that application and ordered for registration of the report and investigation of the case. The report was lodged at Crime No. C-1/2004, under sections 498-A, B04-B and 201, I.P.C. and was investigated upon by the police. The I.O. submitted the final report, against which Smt. Shakura Begum filed protest petition alongwith her affidavit as well as the affidavits of two witnesses. The learned Chief Judicial Magistrate, Jaunpur accepted the protest petition and after rejecting the final report summoned the revisionists for trial under the aforesaid sections by the impugned order dated 31.3.2006, which has been challenged in these revisions. 3. I have heard the learned Counsels for the revisionist of both the revisions and opposite party No. 2 and the learned AGA for the State and perused the material on record. 4. The revisionists of Revision No. 5685 of 2006 are admittedly not the relatives of the husband of the deceased ai1d have been shown as his neighbours and friends and, according to the FIR, the allegations of demand of Rs. 10,000/- one colour TV etc. and subjecting Smt. Fatima to cruelty are against her husband Munawar, parents-in-law and sister-in-law Guddan and not against the said revisionists. No one can be an accused of an offence of section 498-A or 304-B, I.P.C. if he is not a relative of the husband. The Magistrate, while passing the impugned order, has not considered this aspect of the matter. The summoning order in respect of the revisionists of Revision No. 5685/2006 is, therefore, bad in law and is liable to be set aside. 5. So far as the summoning order in respect of the revisionists of the other revision is concerned they are the husband and his relatives and the FIR does contain the allegations against them of treating the deceased with cruelty and causing her death but neither the complainant nor any of her witnesses is admittedly an eye-witness of those allegations. 5. So far as the summoning order in respect of the revisionists of the other revision is concerned they are the husband and his relatives and the FIR does contain the allegations against them of treating the deceased with cruelty and causing her death but neither the complainant nor any of her witnesses is admittedly an eye-witness of those allegations. The learned Magistrate has mentioned in the impugned order that the I.O. had found the cause of death of Smt. Fatima as natural but after observing that the complainant as well as her witnesses Jalaluddin and Haji Ghulam have given their affidavits in which they have stated that the I.O. had not recorded their statements and Smt. Fatima was killed on account of dowry, has rejected the final report and summoned all the revisionists and one Mahngu for trial. The impugned order does not appear to have been passed by the Magistrate in proper exercise of his jurisdiction. If the Magistrate was satisfied on the basis of the affidavits that the I.O. had not recorded the statement of the complainant and witnesses as alleged or the accusations have not been properly investigated then he should have directed the I.O. to re-investigate the matter after remitting the matter back to him with the specific direction that their statements be recorded. Another option open to the Magistrate was to inquire the matter himself after treating the protest petition as a complaint case and he could proceed in accordance with the procedure laid down in Chapters XV and XVI of the Code. The Magistrate did not adopt the correct approach and illegally summoned ~e revisionists on the basis of the affidavits, which could not form part of the evidence. The Magistrate has not considered the circumstance that the matter was also inquired by the Circle Officer of Madhyahun, Jaunpur who had come to the conclusion that Smt. Fatima had died of illness and the allegations of the demand of dowry or treating the deceased with cruelty were false. The Magistrate had also not considered the effect of the compromise entered into between the parties on 10.6.2003 which was also entered at G.D. No. 9 of the P.S. Concerned. He should have considered those circumstances and their effect before making the impugned order. 6. The Magistrate had also not considered the effect of the compromise entered into between the parties on 10.6.2003 which was also entered at G.D. No. 9 of the P.S. Concerned. He should have considered those circumstances and their effect before making the impugned order. 6. In view of above the impugned order cannot be allowed to sustain and is liable to be set aside and the revisions are entitled to be allowed. 7. Both the revisions are accordingly allowed and the impugned order dated 31.7.2006 is set aside and the matter is sent back to the Chief Judicial Magistrate, Jaunpur for the disposal of the final report and the protest petition afresh in the light of the observations made in this judgment. Cri. Revision Allowed.