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2012 DIGILAW 684 (RAJ)

Mohd. Deen v. State of Rajasthan

2012-03-20

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioners challenging the order dated 23.11.2007 passed by the learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, No. 3, Bikaner, whereby, the application under Section 319 Cr.P.C. filed on behalf of the respondent No.2 has been allowed and the petitioners were summoned as additional accused in the Criminal Case No.29/2004 for the offences under Sections 498-A and 406 IPC as affirmed in revision by the learned Addl. Sessions Judge (Fast Track) No.2, Bikaner by order dated 17.11.2008. 2. Briefly stated the facts necessary for the disposal of this misc. petition are that the petitioners herein are father-in-law and mother-in-law respectively of the complainant respondent No.2 Shahnaz Bano, who is married to the son of the petitioners namely Farookh Mohd. The respondent No.2 filed a complaint in the court of Civil Judge (JD) and Judicial Magistrate, No.3, Bikaner against her husband as well as against the petitioners in the year 2004 with the allegations that all the accused persons named in the complaint treated her with cruelty in relation to the demand of dowry and thereafter turned her out from the house in the month of July, 2002 after retaining her dowry articles. The police investigated the matter and during the course of investigation, it came to light that the respondent No.2 i.e. the complainant and the accused Farookh Mohd. were living separately from the petitioners and that the petitioners already had a public notice published in the news paper on 16.08.2002 showing that their son Farookh Mohd. was not in their control and was living separately. The ration card of the petitioners as well as that of Farookh Mohd. was also taken on record during the course of investigation, as per which, both the families were living separately. Ultimately, the police on the conclusion of the investigation filed a charge-sheet only against Farookh Mohd. and submitted a conclusion that the petitioners were not involved in the case. The charges were framed against Farookh Mohd. and evidence was recorded. After recording statements of the four witnesses at the trial, the complainant respondent No.2 herein filed an application under Section 319 Cr.P.C. seeking summoning of the petitioners as additional accused in the case. and submitted a conclusion that the petitioners were not involved in the case. The charges were framed against Farookh Mohd. and evidence was recorded. After recording statements of the four witnesses at the trial, the complainant respondent No.2 herein filed an application under Section 319 Cr.P.C. seeking summoning of the petitioners as additional accused in the case. The aforesaid application came to be allowed by the learned trial Judge and the revision challenging the said order has also been rejected as mentioned above. Hence, the petitioners have approached this Court seeking quashing of the order summoning them as additional accused in the case as well as all the proceedings subsequent thereto. 3. Assailing the proceedings of the courts below, learned counsel for the petitioners submits that the complainant on being examined during the course of the investigation made no allegations whatsoever against the petitioners and now at the trial, the allegation has been made against the petitioners regarding cruelty allegedly committed upon the complainant, which is just an improvement from her earlier version. It is, thus, submitted that the summoning of the petitioners in the case as additional accused merely on the basis of the improved version of the complainant was absolutely unjustified. It is submitted that in view of the fact that the petitioners had already broken their ties from their son i.e. the husband of the complainant two years prior to filing of the FIR and the fact that the petitioners were living separately from the complainant and her husband as is evident from the ration card available on the record of the case, there was no justification for summoning the petitioners as additional accused in the case. It is submitted that for the purpose of exercising the powers under Section 319 Cr.P.C., an opinion is required to be formed regarding the existence of such evidence, which would be sufficient for the likely conviction of the accused sought to be newly added and a mere opinion regarding the existence of a prima facie case was not sufficient to exercise the powers under Section 319 Cr.P.C. It is thus prayed that the orders impugned being absolutely an abuse of the process of the court deserve to be quashed. 4. 4. Learned counsel for the petitioners whilst referring to the statements of the parents of the complainant namely PW-2 Amin Ali, her father and PW-3 Hussan Bano, her mother submits that in these statements, the specific allegation regarding the incidents of cruelty have been made against her husband. Further more, PW-3 Hussan Bano, the mother of the complainant in her cross examination has admitted that when she was examined by the police during the course of investigation, her statement was recorded being Ex.D-3 and in this statement, she has only made allegations of cruelty and beating against Farookh Mohd, husband of the complainant. Thus, learned counsel for the petitioners submits that the involvement of the petitioners in this case is absolutely unjustified. Learned counsel for the petitioners has relied upon the decision of this Court in the case of Geeta Devi Smt. and Anr. v. State and Anr., reported in 2006(1) Cr.L.R. (Raj.) 124. 5. Notice was issued to the respondent No.2 but nobody appeared on her behalf. 6. I have heard learned counsel for the parties, perused the orders impugned passed by the learned courts below as well as the material available on the record of the case. 7. On a careful consideration of the material available on the record, it becomes apparent that there is a direct and clear allegation of the complainant in her FIR regarding cruelty being committed upon her and regarding deprivation of her dowry articles against the petitioners as well as her husband. The allegations have been repeated by the complainant in her investigation statement. It is true that there is some discrepancy in the statements of the complainant and her parents as regards the participation of the present petitioners in the offences but the contradictions are not such that the case of the complainant can be thrown out at this stage when the question of summoning the additional accused is being considered. 8. The Hon'ble Apex Court in the case of Suman v. State of Rajasthan and Anr., reported in AIR 2010 SC 518 upheld the order of summoning of sister-in-law of the complainant as additional accused in the case, wherein, there was a specific allegation of cruelty and harassment was set out in the FIR and during the course of investigation against such sister-in-law, even though, she was found to be living separately. 9. 9. As is observed in the instant case, the complaint filed by the complainant clearly spells out the specific allegations of cruelty and harassment against the petitioners. The statements have been repeated during the course of the investigation. Thus, there do not exist valid and sufficient reasons for interfering in the order passed by the learned trial Judge summoning the petitioners as additional accused in the case as affirmed in the revision. 10. However, looking to the fact that the petitioners have been summoned as additional accused in the case after a lapse of five years from the date of filing of the FIR, this Court feels that the direction to summon the petitioners through warrants of arrest cannot be sustained. 11. Resultantly, whilst affirming the order of the learned Magistrate summoning the petitioners as additional accused in the case, the direction to summon them through warrants of arrest is hereby set aside. It is hereby now directed that the petitioners shall be summoned by issuing bailable warrants in the sum of rupees twenty five thousand each. The petitioners shall appear before the learned Magistrate within a period of four weeks and furnish their bail bonds, failing which, the warrants of arrest shall be issued for securing the presence of the petitioners.Accordingly, this misc. petition as well as stay petition stand disposed of.Petition disposed of. *******