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2013 DIGILAW 390 (UTT)

Khurshid Alam v. Baby Shaeen

2013-06-26

ALOK SINGH

body2013
Judgment Alok Singh, J. 1. Present petition is filed assailing the summoning order dated 14.01.2013 passed by the Judicial Magistrate Ramnagar, District Nainital, whereby learned Magistrate was pleased to summon the petitioners for the offences punishable under Sections 323, 504, 498-A I.P.C. and ¾ Dowry Prohibition Act. 2. Brief facts of the present case, inter alia, are that respondent preferred an application under Section 156 (3) of the Cr.P.C. against the petitioners in the Court of Judicial Magistrate Ramnagar, stating therein that marriage of the petitioner No. 1 and respondent was solemnized on 2nd April, 2009 as per Muslim rites and ceremonies; father of the complainant has given household articles, utensils, furniture, double bed and jewelry at the time of marriage and also got deposited Rs.2 lacs in the saving bank account of the complainant; petitioners were not happy with the articles given by the father of the petitioner at the time of marriage; petitioners told the complainant that they agreed for marriage of petitioner No.1 with the respondent, with hope that huge dowry would be given since father of the complainant was a Government Servant; petitioner No.1 (husband) took the A.T.M. card of the complainant and started withdrawing money from the saving bank account of the complainant by using her A.T.M. card; in the month of August, 2012, petitioner demanded Rs.8,60,000/- to purchase the Xylo Car and told if cash was not available finance to purchase the Car could be arranged; father of the complainant told the petitioners that he was not in such a financial position to purchase the Xylo Car, on this, petitioners got annoyed and started abusing father of the complainant; on 01.11.2012, petitioners asked the complainant as to what happened to the Xylo car; on this, complainant told the petitioners, that her father was not present at home; hearing this, she was beaten up by the petitioner No.1 and his mother. 3. Learned Magistrate, treating the application under Section 156 (3) Cr.P.C. as complaint, and after recording the statement of the complainant as well as father of the complainant, pleased to pass impugned summoning order. Feeling aggrieved, petitioners have invoked inherent jurisdiction of this Court under Section 482 Cr.P.C. 4. I have heard Mr. Tumul K. Nailwal, learned counsel for the petitioners and Mr. J.S. Virk, learned counsel for the respondent and have carefully perused the record. 5. Feeling aggrieved, petitioners have invoked inherent jurisdiction of this Court under Section 482 Cr.P.C. 4. I have heard Mr. Tumul K. Nailwal, learned counsel for the petitioners and Mr. J.S. Virk, learned counsel for the respondent and have carefully perused the record. 5. While examining the cognizance/summoning order or F.I.R. impugned before this Court in a matrimonial dispute, this Court must keep in mind that there is a tendency to implicate all family members and relatives of the husband. It should also bear in mind that floating statement against the relatives and family members of the husband should not be accepted. 6. English translation of the impugned summoning order, is as under :- “Today is fixed for passing summoning order. Record is produced before me. Case is fixed for summoning order. I have perused the statement of the complainant recorded under Section 200 Cr.P.C. and statement of C.W.1 Shahid Hussain and C.W.2 Chanda recorded under Section 202 Cr.P.C. From the perusal of the statement, I find sufficient ground to proceed against Khurshid Alam, Smt. Dilwari, Mohd. Sakil, Nasim and Nanhe under Sections 323, 498-A, 504 I.P.C. and under section ¾ D.P. Act. Therefore, summoning of Khurshid Alam, Smt. Dilwari, Mohd. Sakil, Nasim and Nanhe under Sections 323, 498-A, 504 I.P.C. and under section ¾ D.P. Act seems to be justified. Let summons be issued against Khurshid Alam, Smt. Dilwari, Mohd. Sakil, Nasim and Nanhe under Sections 323, 498-A, 504 I.P.C. and under section ¾ D.P. Act. Complainant shall take steps to serve the accused within a week and record be produced on 14.02.2013 for the appearance of the accused. Judicial Magistrate Ramnagar (Nainital)” 7. Hon’ble Apex Court in the case GHCL Employees Stock Option Trust Vs. India Infoline Limited, (2013) 4 SCC 505 has observed as under :- “Summoning of the accused in a criminal case is a serious matter. Hence the criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. In the present case, in the summoning order the Magistrate has not recorded his satisfaction about a prima facie case as against Respondents 2 to 7 and the role played by them.” 8. As per the dictum of the Hon’ble Apex Court Magistrate should not pass summoning order in a routine manner. He has to record his reasoning and satisfaction about the prima facie case justifying the summoning of the accused. Order impugned reveals that learned Magistrate has not recorded his satisfaction. Learned Magistrate did not care to find out as to what specific role is attributed to each of the accused. Magistrate should be vigilant about the role played by the family members of the husband. Therefore, impugned judgment does not sustain in the eyes of law. 9. Consequently, present petition is allowed. Impugned order is set aside. Matter stands remitted to the learned Magistrate who shall hold further details inquiry and shall pass order afresh in accordance with law.