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Uttarakhand High Court · body

2014 DIGILAW 5 (UTT)

Deepesh v. State of Uttarakhand

2014-01-02

U.C.DHYANI

body2014
ORDER The applicants, by means of present application/petition under Section 482 of Cr.P.C., seek to quash the summoning order dated 05.06.2006, as also the entire proceedings of criminal case No. 807 of 2006, State v. Deepak and others, under Sections 498A, 504 of IPC and Sections 3/4 of the Dowry Prohibition Act, pending before the court of I Addl. Chief Judicial Magistrate, Haridwar. 2. Complainant (respondent No. 2 herein) lodged an FIR against six accused persons, including the applicants, at police station, Roorkee, Haridwar on 04.09.2001, which was registered as case crime No. 171 of 2001, under Section 498A of IPC and Sections 3/4 of the Dowry Prohibition Act. After the investigation, a charge-sheet was submitted only against Deepak, Tilak Raj and Smt. Rajwati under Sections 498A, 504 of IPC and Section 3/4 of the Dowry Prohibition Act. Charge-sheet was not submitted against Deepesh, Smt. Deepa and Smt. Durgesh (applicants herein). 3. When PW1 Abhilasha entered into the witness box, she also named Deepesh, Smt. Deepa and Smt. Durgesh as perpetrators of the crime. PW1 was cross-examined. Likewise, PW2 Jiya Lal Sharma, also named Deepesh, Smt. Deepa and Smt. Durgesh in his examination-in-chief as perpetrators of the crime. PW2 was also cross-examined. Thereafter, an application under Section 319 of Cr.P.C. was filed on behalf of PW1 for summoning Deepesh, Smt. Deepa and Smt. Durgesh as accused. Such an application was allowed by learned Judicial Magistrate, Haridwar, vide order dated 05.06.2006. Learned Judicial Magistrate relied upon the examination-in-chief of PW1, in which she stated that on 10.11.1999, her husband Deepak, mother-in-law Rajwati, married sister-in-law Deepa, father-in-law Tilak Raj, another married sister-in-law Durgesh and brother-in-law Deepesh ousted her from (her) matrimonial home. Learned Magistrate also held that there was sufficient evidence against Smt. Deepa, Smt. Durgesh and Deepesh for proceeding against them. Learned Judicial Magistrate, therefore, summoned Smt. Deepa, Smt. Durgesh and Deepesh, in exercise of his jurisdiction under Section 319 of Cr.P.C., to face the trial for the offences punishable under Sections 498A, 504 of IPC and Section 3/4 of the Dowry Prohibition Act, vide order dated 05.06.2006. A criminal revision was preferred against the same, which was dismissed, vide impugned judgment and order dated 24.03.2007. Aggrieved against their summoning, present application under Section 482 of Cr.P.C. was filed on behalf of the applicants, viz., Deepesh, Smt. Deepa and Smt. Durgesh. 4. A criminal revision was preferred against the same, which was dismissed, vide impugned judgment and order dated 24.03.2007. Aggrieved against their summoning, present application under Section 482 of Cr.P.C. was filed on behalf of the applicants, viz., Deepesh, Smt. Deepa and Smt. Durgesh. 4. Respondent No. 2 was issued notice, but none appeared on her behalf, despite personal service of notice. No counter affidavit was thus filed to contradict the averments made by applicant No. 1 Deepesh in his affidavit. The question is ‚ whether the learned Magistrate was justified in summoning the accused-applicants in exercise of his jurisdiction under Section 319 of Cr.P.C. or not? 5. It was held by Hon’ble Apex Court in Brindaban Das and others v. State of West Bengal (2009) 2 SCC (Cri) 79 : ( AIR 2009 SC 1248 ) that the power under Section 319, Cr.P.C. is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. The fulcrum on which the invocation of Section 319, Cr.P.C. rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but also to secure the conviction of the persons summoned. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction. 6. It was observed by Hon’ble Supreme Court in Sarojben Ashwinkumar Shah etc. v. State of Gujarat and another, 2011 (2) NCC 414 : (2011 AIR SCW 5859) that the power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The power conferred upon the court is although discretionary but is not to be exercised in a routine manner, In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. The power conferred upon the court is although discretionary but is not to be exercised in a routine manner, In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence led in before the court is not enough. The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. 7. The Hon’ble Apex Court further cautioned in respect of exercise of jurisdiction under Section 319 of Cr.P.C. in the case of Sarabjit Singh and another v. State of Punjab and another, 2009 AIR SCW 4236 : ( AIR 2009 SC 2792 ). Relevant extract of the judgment is reproduced here-in-below: “An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 8. It may be noted here that applicant No. 1 is dever (brother-in-law), applicant No. 2 and applicant No. 3 are married nanads (sisters-in-law) of the respondent No. 2. Applicant No. 1 is not the member of the household belonging to respondent No. 2 and her husband. Applicant No. 2 and 3 are the members of different household in New Delhi. All the three applicants have no connection with the domestic affairs of respondent No. 2 and her husband. Although they are close relatives of the husband, but have, apparently, no say in the domestic affairs of respondent No. 2 and her husband. The allegations levelled against them are general and sweeping in nature. All the three applicants have no connection with the domestic affairs of respondent No. 2 and her husband. Although they are close relatives of the husband, but have, apparently, no say in the domestic affairs of respondent No. 2 and her husband. The allegations levelled against them are general and sweeping in nature. Will it be appropriate to ask them to face trial, along with the main accused, in such a situation? The judgment rendered by Hon’ble Supreme Court in Preeti Gupta and another v. State of Jharkhand and another (2010) 7 SCC 667 : ( AIR 2010 SC 3363 ), provides the answer. 9. It was observed by Hon’ble Apex Court in Preeti Gupta’s case ( AIR 2010 SC 3363 ) (supra), that it is a matter of common experience that most of the complaints under Section 498A, IPC are filed in the heat of the moment over trivial issues without proper deliberations. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. 10. It is, accordingly, held that it will not be appropriate to ask such relatives of the husband of respondent No. 2 to face the trial, along with the main accused, who have no concern with the domestic affairs of the (estranged) couple. The quality of evidence tendered by PW1 and PW2 against the accused-applicants is not worth summoning them to face the trial in exercise of jurisdiction under Section 319 of Cr.P.C. 11. As a consequence thereof, the application under Section 482 of Cr.P.C. deserves to be allowed and the same is, accordingly, allowed. The quality of evidence tendered by PW1 and PW2 against the accused-applicants is not worth summoning them to face the trial in exercise of jurisdiction under Section 319 of Cr.P.C. 11. As a consequence thereof, the application under Section 482 of Cr.P.C. deserves to be allowed and the same is, accordingly, allowed. Summoning Order dated 05.06.2006, as also the proceedings of criminal case No. 807 of 2006, State v. Deepak and others, under Sections 498A, 504 of IPC and Sections 3/4 of the Dowry Prohibition Act, pending in the court of I Addl. Chief Judicial Magistrate, Haridwar are hereby quashed qua applicants only. Petition allowed.