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2011 DIGILAW 1818 (ALL)

GIRDHARI LAL v. STATE OF U. P.

2011-08-01

RAJESH CHANDRA

body2011
JUDGMENT Hon’ble Rajesh Chandra, J.—Case called out but nobody responds for the revisionists. Learned A.G.A. is present. 2. The notice of the revision was served upon the opposite party No. 2 Karan Singh whereupon he engaged Sri Keshav Sahai as his Advocate. 3. After the death of Sri Keshav Sahai, a fresh notice was issued to the opposite party No. 2 to engage another counsel which was personally served upon him but he did not engage any other counsel. 4. Since, the revision is as much old as that of the year 1988, the same is being disposed of on merits. In brief, the facts of the case are that Karan Singh filed a complaint case in the Court of Munsif Magistrate-III, Muzaffarnagar, which was registered as Criminal Case No. 2061 of 1988. The complainant alleged that his daughter Geeta was married to the accused Anil, accused No. 1 in the complaint. The accused No. 2 Omwati and accused No. 3 Mahendra are the parents of Anil, accused No. 4 Girdhari Lal is the maternal grand father (Nana) of Anil whereas the accused No. 5 Smt. Usha, wife of Satyaveer Singh, is the sister of Anil. The allegation is that sufficient dowry was given at the time of marriage but the in-laws were not satisfied with the same, and on account of that Smt. Geeta was being harassed and teased by the accused persons. The accused persons were also planning to arrange second marriage of Anil. The complainant alleged that on 26.4.1988 the accused Anil left his wife Smt. Geeta at her parental house. Subsequently, accused Anil came to the house of the complainant on 23.5.1988 and remained there for 5 to 7 days, and in this period his behavior with Smt. Geeta was cordial. When Anil asked the complainant to send Geeta with him, the complainant told that the accused Anil should bring his parents and it will be after this assurance of his parents that Geeta will not be harassed, the complainant will send Geeta with the accused. However, the accused Anil did not come back. 5. Further contention of the complainant is that on 26.6.1988 he alongwith brother-in-law Jagdish and one Dharam Pal came to the house of Anil and found that Anil has married with another girl Smt.Sudesh. However, the accused Anil did not come back. 5. Further contention of the complainant is that on 26.6.1988 he alongwith brother-in-law Jagdish and one Dharam Pal came to the house of Anil and found that Anil has married with another girl Smt.Sudesh. The complainant asked the accused persons jointly and severally to return the house hold goods but they refused to do so and, thus, they have committed the offence of criminal breach of trust. 6. The learned Magistrate recorded the statements of Karan Singh, Smt. Geeta, Padam Singh and Nafey Singh, and then coming to the conclusion that the offence under Section 406 I.P.C. is made out, summoned all the five accused persons vide order dated 14.9.1988. It is this order dated 14.9.1988 which has been challenged in this revision only by the two accused, namely, Girdhari Lal and Smt. Usha, respectively, maternal grand father and the married sister of the accused Anil. 7. A perusal of the statement of Karan Singh clearly indicates that when the accused Anil came to the house of the complainant with Geeta on 26.4.1988, the complainant’s mother inquired Geeta about her clothes and ornaments. Geeta then told that all these goods are with Anil. He has further stated that when he went to the house of the accused Anil and asked him to return the goods, he refused for the same. Thus, from the statements of the complainant Karan Singh, it is clear that the allegations about criminal breach of trust are only against Anil. 8. Geeta was also examined by the Magistrate under Section 202 Cr.P.C. in which she has stated that the goods were demanded from Anil and other family members of Anil. However, she did not disclose the names of other family members of Anil.Thus, her evidence is also against Anil only. 9. The evidence of Padam Singh and Nafey Singh is to the effect that the Articles given at the time of marriage were handed over to all the accused. But those statements are vague in nature and do not prove entrusmment to any particular? person. Even otherwise their testimony is not regarding commission of criminal breach of trust. In view of the above, it is clear that there are no allegations of committing criminal breach of trust against the present revisionists, namely, Girdhari Lal and Smt. Usha. 10. But those statements are vague in nature and do not prove entrusmment to any particular? person. Even otherwise their testimony is not regarding commission of criminal breach of trust. In view of the above, it is clear that there are no allegations of committing criminal breach of trust against the present revisionists, namely, Girdhari Lal and Smt. Usha. 10. The Magistrate has not considered the evidence on record in its right perspective and has passed the order summoning the revisionists in a routine manner. The right to liberty is a fundamental right guaranteed under Article 21 of the Constitution and as such, is not to be violated. The order of summoning a person as accused may be having far reaching consequences at any subsequent point of time and the person may be sent to jail. Hence, it is the bounden duty of the Magistrate to see that the persons are summoned as accused only when there is prima facie evidence against them. 11. In the present case, the Magistrate has committed illegality in summoning the revisionists without there being any evidence against them on record. The order of Magistrate deserves to be set aside. 12. The revision is allowed and the Magistrate’s order dated 14.9.1988 summoning the revisionists Girdhari Lal and Smt. Usha is set aside. The interim order, if any, is vacated. 13. A copy of this order be sent to the Court of Munsif Magistrate-III, Muzaffarnagar for information by FAX as well as by registered post A.D. —————