Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1954 (ALL)

Smriti Singh v. State of U. P.

2023-08-11

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT Ram Manohar Narayan Mishra, J. Heard Ms. Chhay Gupta, learned counsel for the petitioners, Sri Girja Shankar Prajapati, learned counsel for the private respondent and Sri Ashish Mani Tripathi, learned A.G.A. for the State and perused the record. 2. Present petition under Article 227 of the Constitution of India has been filed against the impugned order dated 14.2.2023 passed by learned Additional Sessions Judge, Court No. 12, Meerut, in Crl. Revision No. 664 of 2022 (Smt. Smriti Singh and others v. State of U.P. and another) and the impugned summoning order dated 29.10.2021 passed by learned Additional Chief Judicial Magistrate, Court No. 7, Meerut, in Complaint Case No. 11145 of 2021 (Rahul Kumar v. Smriti and others), P.S. Jani, District Meerut against the petitioner nos. 2 to 6 under Section 452, 323, 504, 506 IPC. 3. The factual matrix of the case which are relevant for present petition is that respondent no. 2 Rahul Kumar, is husband of petitioner no. 1 and petitioner nos. 2 to 6 are family members of petitioner no. 1. Respondent no. 2 filed a complaint bearing Complaint Case No. 11145 of 2021 (Rahul Kumar v. Smriti and others) with averment that his marriage with Smt. Smriti Singh was solemnized on 20.2.2018 in accordance with Hindu rites and rituals in simple manner without any dowry. She came to her matrimonial home after being send off from her parental home after marriage but she was not feeling well at the place of complainant as she is a woman of modern thinking. She was very demanding. She was also exerting pressure on complainant to come at her parental place and live with her there but the complainant was not ready to concede to this demand of his wife as it was not possible for him to leave his own parents. She is very obstinate and used to remain outside the home without any information. On 3.6.2019 when complainant was away from his house in connection with his duty, his wife Smriti in absence of complainant and being accompanied by her father, brother, sister-in-law, another brother Samarjeet and mother Urmila Devi, took away Rs. 2,00,000/- kept in the house as well as the jewellery (gold and silver) and clothes with her. On 3.6.2019 when complainant was away from his house in connection with his duty, his wife Smriti in absence of complainant and being accompanied by her father, brother, sister-in-law, another brother Samarjeet and mother Urmila Devi, took away Rs. 2,00,000/- kept in the house as well as the jewellery (gold and silver) and clothes with her. When he came back to home, he found his almirah open and neighbours informed him that Smriti, her parents and others had gone taking a big bag with him. When he enquired this fact from his wife, she became abusive and threatened him to implicate in false cases. His wife was repeatedly cheating him and got her fetus aborted without his consent and in absence of complainant. When he came to know this fact, he objected, but his wife Smt. Smriti Singh threatened him to implicate in some false case if he tried to get her pregnant. 4. On 27.10.2019, on the date of Deepawali, accused persons Smriti and his family members trespassed into the house of complainant and tried to force him to go along with them at Gurgaon and live with them. When he protested to this, they ransack the things kept in his house, created commotion, abused him and threatened him with life and to implicate him in false cases. When he informed this incident to local police, his report was not lodged on the pretext that this is family matter. The complainant examined himself under Section 200 Cr.P.C. and witnesses Khemchandra and Mahendra under Section 202 Cr.P.C.. 5. During enquiry under Section 200 and 202 Cr.P.C., learned trial court after perusal of material on record and considering submissions of learned counsel for the complainant came to conclusion that a prima facie case under Sections 406, 323, 504, 506 IPC is made out against Smriti and under Sections 452, 323, 504, 506 IPC against other accused persons, on the basis of evidence on record and issued process against them accordingly to face trial. 6. Feeling aggrieved by the impugned order dated 29.10.2021 passed by learned trial court, opposite parties in said complaint case preferred a criminal revision before court of session in which legality, correctness and proprietary of summoning order passed by court below was assailed, however, learned revisional court/Additional Sessions Judge, Court No. 12, Meerut, dismissed the criminal revision vide impugned order dated 14.2.2023. 7. 7. Present writ petition has been filed against the order of revisional court as well as the summoning order passed by learned magistrate against present petitioners who are accused before court below. 8. Notice was issued to respondent no. 2 who appeared through counsel in present petition. 9. Learned counsel for the petitioners submitted that this is undisputed fact that marriage of petitioner no. 1 with respondent no. 2 was solemnized on 20.2.2018. Petitioner no. 1 had seen photograph of her husband with his girlfriend Anjali on 2.5.2018 and enquired about this from him. He assured her that he will not repeat this mistake again but on 19.6.2018 petitioner no. 1 again found some chats of respondent no. 2 and said Anjali. Petitioner no. 1 became pregnant in the meanwhile and due to neglect of respondent no. 2 and his family, baby died before birth. Respondent no. 2 and his family members started harassing and torturing her and threatened her that they would spoil her life and respondent no. 2 will give divorce to her. On 24.12.2018, respondent no. 2 and his family members dragged the petitioner no. 1 out of house but matter was anyhow settled between them but again in February, 2019, petitioner no. 1 found respondent no. 2 being involved in chatting with his girlfriend Anjali. Digital photographs of said Anjali and respondent no. 2 are filed as Annexure no. 3 to the petition. As the respondent no. 2 and his family members did not stop harassing and torturing petitioner no. 1, petitioner no. 1 lodged a complaint on 22.6.2019 in woman Cell, Gurgaon, her native place. On 29.1.2020, she lodged an first F.I.R. against her husband and in-laws under Sections 323, 406, 498A, 506 IPC. On 13.1.2020 petitioner no. 1 filed a case under Protection of Women from Domestic Violence Act against husband and in-laws which was dismissed by trial court on 21.11.2021 against which petitioner no. 1 filed a criminal appeal which is pending. Petitioner no. 1 has also filed maintenance case under Section 125 Cr.P.C. against her husband. After lodging of F.I.R. by petitioner no. 1, respondent no. 2 and his family members agreed to take her to their place. Police convened the mediation between the parties and complainant/respondent no. 2 did not give any information regarding present complaint. 10. After lodging of F.I.R., police summoned petitioner no. 1 and respondent no. After lodging of F.I.R. by petitioner no. 1, respondent no. 2 and his family members agreed to take her to their place. Police convened the mediation between the parties and complainant/respondent no. 2 did not give any information regarding present complaint. 10. After lodging of F.I.R., police summoned petitioner no. 1 and respondent no. 2 for returning streedhan and other valuable items taken as dowry. Respondent no. 2 has submitted a list of gift items and some valuables but it did not include complete items and jewellery, therefore, she refused to take back these items and police handed over the same to respondent no. 2 and took his acknowledgement on a paper which bears signature of respondent no. 2 and petitioner no. 1. 11. Present case has been lodged on the basis of application moved under Section 156 (3) Cr.P.C. by respondent no. 2 against petitioners which was treated as complaint by court below. The revisional court ignored the documents filed by the revisionist in revision. There is contradiction in the statement of respondent no. 2 and those given by PW-1 and PW-2 under Section 202 Cr.P.C. before court below. There is no evidence on record which shows that petitioner no. 1 and other petitioners forcefully entered in the house of respondent no. 2. Summoning order was passed on 29.10.2021 but respondent no. 2 did not produce any list of witnesses. Bailable warrant was issued by trial court against petitioners on 23.12.2021. Summoning order passed by court below is against law. Revisional court did not considered the ground taken in revision. In impugned order dated 29.10.2021 it is not clear that who has taken the jewellery and what is the description of jewellery which is allegedly taken away by the petitioners, therefore, the courts below have not taken into consideration the F.I.R. lodged by the petitioner no. 1 against respondent no. 2 and his family members. The name of witnesses is neither mentioned in complaint nor any list of witness was filed along with complaint. Witnesses are arranged by respondent no. 2/complainant. The courts below have passed impugned orders in mechanical manner and ignored the material on record while passing and affirming the summoning order. Summoning order passed by learned magistrate is devoid of application of mind and liable to be set aside. 12. Per contra, learned counsel for the respondent no. Witnesses are arranged by respondent no. 2/complainant. The courts below have passed impugned orders in mechanical manner and ignored the material on record while passing and affirming the summoning order. Summoning order passed by learned magistrate is devoid of application of mind and liable to be set aside. 12. Per contra, learned counsel for the respondent no. 2 as well as learned A.G.A. submitted that there is no illegality or irregularity in impugned order passed by court below at the stage of passing of summoning order. In a complaint case magistrate has to find out a prima facie case based on material on record to summon accused to face trial. The magistrate is not required to delve upon meticulous examination of evidence recorded in proceedings under Sections 200 and 202 Cr.P.C. There is ample material and evidence on record which prompted learned magistrate to summon the opposite parties, who are petitioners before this Court to face trial. There is no good ground warranting interference of this Court in concurrent orders passed by learned courts below. 13. Learned counsel for the petitioners placed reliance on a judgment of Hon'ble Apex Court in Mehmood UI Rehman v. khazir Mohammad Tunda and others, (2015) 12 SCC 420 , wherein Hon'ble Court was called upon to decide the scope of "opinion of magistrate on sufficient ground for proceeding to issue process to accused. In this case, in paragraph no. 21, following has been observed:- "21. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter." 14. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter." 14. In above case, Hon'ble Supreme Court cited and relied upon an earlier judgment in Pepsi Foods Limited and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 , wherein it was held that exercise under Section 204 of CrPC of summoning an accused in a criminal case is a serious matter and that the process of criminal law cannot be set into motion in a mechanical manner. It was also held that 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 governing the issue. "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 15. From perusal of record it appears that petitioner no. 1 lodged an F.I.R. against respondent no. 2 and his family members on 29.1.2020 on the basis of written report and it appears that after lodging of this F.I.R., police took an initiative for restoration of Streedhan and other valuables to petitioner no. 1, which were in possession of her husband (respondent no. 1 lodged an F.I.R. against respondent no. 2 and his family members on 29.1.2020 on the basis of written report and it appears that after lodging of this F.I.R., police took an initiative for restoration of Streedhan and other valuables to petitioner no. 1, which were in possession of her husband (respondent no. 2) on 12.3.2020 in Gurgaon (Haryana), native place of petitioners but same could not be worked out as the petitioner no. 1 declined to take the items on ground that it was not complete and did not consist jewellery. Again a meeting was convened by police for restoration of marital gift items and ornaments to petitioner no. 1 which were produced by respondent no. 2 before police but petitioner no. 1 did not appear and informed that she will take these items before the court. On 1.11.2019, the respondent no. 2 moved an application under Section 156(3) Cr.P.C. which was treated as complaint by court below vide order dated 21.11.2019 and subsequently the impugned order was passed. 16. This is admitted fact that there is matrimonial dispute between the parties. After filing of present complaint by the respondent no. 2, petitioner no. 1 lodged an F.I.R. against her husband and in-laws. Some maintenance cases are also instituted at the instance of petitioner no. 1 against her husband and in-laws. There is allegation that petitioner no. 1 has made specific allegation that respondent no. 2 is involved with a girlfriend and their companion continued even after marriage of the parties to present dispute. 17. In application under section 156(3) Cr.P.C. which is treated as complaint, no witness is named therein. Even the witnesses Khemchandra and Mahendra Singh are not eye-witnesses of the incident which allegedly took place on 3.6.2019 as both of them have stated that they had heard that Smriti Singh took away Rs. 2,00,000/- cash and ornaments from the place of her husband and moved to her parental place. They have stated that they had heard this incident. They have stated to have seen the second incident dated 27.10.2019 which relates to allegation of assault, abusing and threatening committed by petitioners against respondent no. 2, however, there is no injury report in support of complaint version. Description of ornaments which petitioner no. 1 took away from house of her husband, is also not given in complaint or statement of complainant under Section 200 Cr.P.C.. 2, however, there is no injury report in support of complaint version. Description of ornaments which petitioner no. 1 took away from house of her husband, is also not given in complaint or statement of complainant under Section 200 Cr.P.C.. Section 204(2) Cr.P.C. provides that no summon or warrant shall be issued against accused (i) until the list of prosecution witnesses has been filed and the petitioners have taken a ground that no list of witnesses has been given along with complaint and even thereafter. 18. In the light of foregoing discussion, I am of the considered opinion that learned courts below have not considered the matter in proper prospective and keeping in view the fact that matter relates to matrimonial dispute between petitioners and respondent no. 2(complainant) which requires thoughtful consideration of the matter before issuing process against the petitioners who is wife and in-laws of respondent no. 2, therefore, the impugned orders are not sustainable in the eye of law and deserves to be set aside. Accordingly, impugned orders passed by learned revisional court in Crl. Revision No. 664 of 2022 dated 14.2.2023 as well as initial summoning order dated 29.10.2021 passed by learned A.C.J.M., Court No. 8, Meerut are set aside. 19. Petition under Section 227 Cr.P.C. stands allowed. 20. Matter is remanded to learned magistrate to hear the question of summoning of opposite parties (present petitioners) afresh on giving opportunity of hearing to the complainant (respondent no. 2) and pass a reasoned and speaking order in the light of observations of this Court in present petition.