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2024 DIGILAW 2343 (ALL)

Shrikrishna Gupta v. State of U. P.

2024-11-13

RAM MANOHAR NARAYAN MISHRA

body2024
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Instant criminal revision preferred against the impugned order dated 1.1.2024 passed by the learned Additional Sessions Judge/special Judge, Dacoity Affected Area Mainpuri in Misc. Criminal Complaint Case No. 18 of 2019 whereby the complaint has been dismissed under section 203 Cr.P.C. 2. Heard Learned counsel for the revisionist, learned counsel appearing for the respondent no. 7 as well as learned AGA for the State and perused the material available on record. 3. As per office report dated 3.4.2024 as well as learned C.J.M., Mainpuri, respondent no. 3, namely, Meera Devi has died. Notices are served to all respondents. 4. Learned counsel for the revisionist submits that the revisionist has filed an application under section 156(3) Cr.P.C. with the allegation that applicant's son Mohit was married with opposite party no. 7 in January, 2015 as per Hindu Rights and Rituals and from the wedlock a child was born who was about 11 months. On 23.6.2017, some dispute took place between his son Mohit and his wife due to which his wife Akanchha went to her parental home along with her son. The opposite party no. 7 has mislead her family members and on 5.7.2017, opposite party no. 7 along with family members entered into his house and started hurling abuses and committed assault upon him. They started beating by kicks and fists. They also kept applicant and his wife forcefully in the corner of the room and snatched gold ornaments from his wife. They robbed ornaments of his wife and also robbed cash around Rs. 57,000/-. They tried to confine his wife and son in a room and also threatened to burn them. 5. The said application was treated by learned trial court as complaint case. The statement of opposite party no. 2 has been recorded under section 200 Cr.P.C. and statement of witnesses, namely, Raj Kumari (PW-1), Mohit (PW-2) and Digambar Singh (PW-3) has been recorded under section 202 Cr.P.C. 6. Learned trial court after considering the allegations made in the complaint and statement of witnesses recorded under sections 200 and 202 Cr.P.C. dismissed the complaint with the observation that there are material contradictions in the statement of witnesses and complainant. This is an admitted fact that an F.I.R. has been lodged by opposite party no. Learned trial court after considering the allegations made in the complaint and statement of witnesses recorded under sections 200 and 202 Cr.P.C. dismissed the complaint with the observation that there are material contradictions in the statement of witnesses and complainant. This is an admitted fact that an F.I.R. has been lodged by opposite party no. 2 to 7 as Case Crime No. 43 of 2017, under sections 498A, 323, 504 I.P.C. and 3/4 D.P. Act. The present application under section 156(3) Cr.P.C. was filed on 17.9.2018. There is matrimonial discord between son of the complainant and opposite party no. 7 who is his daughter-in-law. With these observations, learned trial court has dismissed the complaint. 7. Prima facie, the case is made out to summon the four accused persons for alleged offence on the basis of material on record. Learned trial court failed to consider the proper perspective of the matter and dismissed the complaint on the basis of presumption, therefore, impugned order deserves to be set aside and accused are liable to be proceeded with. 8. Per contra, learned counsel for the respondent no. 7 placed reliance on the averments made in counter affidavit and submitted that there are material contradictions in the statement of complainant as well as witness recorded under section 200 Cr.P.C. and 202 Cr.P.C. which has been duly mentioned in the impugned order. The present complaint is counter blast of Case Crime No. 43 of 2017 under sections 498A, 323, 504 I.P.C. and 3/4 D.P. Act which was lodged at the instance of opposite party no. 7 against the revisionist and others. The prosecution version itself is unbelievable as it is unnatural that accused persons who are relative of the complainant, visited his house and committed house trespass, assault and criminal intimidation against the complainant and his family members without any hindrance by the family members and neighbor of the opposite party. 9. It is further submitted that there is no injury report which supports the version of complaint. The matrimonial discord between son of the complainant and opposite party no. 7 is an admitted fact. In F.I.R. itself it is stated that F.I.R. lodged by opposite party no. 7 is anti date and time. The husband and parents-in-law of opposite party no. 7 are main accused. The son of opposite party no. The matrimonial discord between son of the complainant and opposite party no. 7 is an admitted fact. In F.I.R. itself it is stated that F.I.R. lodged by opposite party no. 7 is anti date and time. The husband and parents-in-law of opposite party no. 7 are main accused. The son of opposite party no. 7 is residing with her at her parental home since lodging of F.I.R. by her and this fact that private respondents have took away the son of opposite party no. 7 from the house of revisionist on the date of alleged incident. 10. The revisionist is the applicant who filed an application under section 156(3) Cr.P.C. before the trial court with above statement against respondent nos. 2 to 7. The said application 156(3) Cr.P.C. was treated by learned Special Judge as complaint and after undertaking inquiry under section 202 Cr.P.C. and recording statement of complainant and witnesses, learned Special Judge has dismissed the complaint under section 203 Cr.P.C. on the ground that complainant has failed to make out a prima facie case on the basis of complaint version. The proposed accused are daughter-in-law of the complainant and also her brother, mother, uncle (mausa) and Aunt (mausi) and other relatives. It also appears that prior to filing of present application under section 156(3) Cr.P.C. on 17.9.2018 which was treated as complaint, the opposite party no. 7, Akanchha Gupta, had lodged an F.I.R. against husband, father-in-law (revisionist), mother-in-law and some unknown persons with regard to the incident which occurred between 29.6.2017 to 17.7.2017, which reflects that there is matrimonial discord between opposite party no. 7 and husband Mohit Gupta @ Bunti and parents-in-law, therefore, there are substance in contention raised on behalf of the revisionist that the present complaint is counter blast of F.I.R. lodged at the instance of opposite party no. 7 against revisionist and his family members. 11. There is no injury report in support of the allegations made in application under Section 156(3)Cr.P.C. There is also force in contention raised on behalf of the opposite parties that this judgment does not sound natural that the opposite parties who are resident of some other district will barge into the house of the applicant who is their relative and several offences like assaulting his family members, committing robbery, confining them in a room and planning to burn them by poring kerosene oil, were done by them. 12. 12. This Court in Sukhwasi Son of Hulasi vs. State of U.P. 2008 Cri. L.J. 472 held that the Magistrate is bound to pass an order on each and every application under Section 156(3) Cr.P.C. containing allegations of commission of a cognizable offence for registration of the F.I.R. and its investigation by the police even if those allegations, prima-facie, do not appear to be genuine and do not appeal to reason, or he can exercise judicial discretion in the matter and can pass order for treating it as 'complaint' or to reject it in suitable cases. 13. In paragraph no. 2 of the said judgment it has been observed that before proceeding to discuss the pros and cons of the issue, it would not be out of place to mention that this controversy would have not arisen, if provisions of Section 156(3) Cr.P.C. had been drafted in a more explicit manner. It could have been mentioned that the Magistrate in his discretion direct registration of the first information report or it could have been mentioned that he should direct registration of a first information report in an appropriate case. Francs Bienniom couplet comes to mind: “I am the Parliamentary Draftsman, I composed the country's Laws and of Half the litigation. I am undoubtedly the cause.” 14. Hon'ble Apex Court in M/S. Pepsi Foods Ltd. & Anr vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 749 observed as under: “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. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. 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. In present case, the learned Special Judge, Mainpuri has dismissed the complaint by assigning cogent reasons and passing a speaking order as he has disclosed reasons as to why he has not placed reliance on the averment made in complaint (application under section 156(3) Cr.P.C.) and statement of complainant and witnesses in support thereof. He also pointed out apparent contradictions in the statements of complainant on the one hand and witnesses on the other hand recorded in preliminary inquiry under Chapter 15 Cr.P.C. 16. On the basis of foregoing observations and judicial authorities of Hon'ble Supreme Court as stated above, I find no illegality, irregularity and perversity in the impugned order passed by Additional Sessions Judge/special Judge, Dacoity Affected Area, Mainpuri. The revision is devoid of merits and deserves to be dismissed. 17. The revision is, accordingly, dismissed.