Single Judge dismissed an application under Section 482 Cr.P.C. challenging lower courts' refusal to summon five in-laws in a dowry harassment case. The court held allegations against them were vague, summoning order was not interlocutory, and revision remedy was barred.
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Court No. - 42
Case :- APPLICATION U/S 482 No. - 35069 of 2018
Applicant :- Smt. Asha Opposite Party :- State Of U.P. And 6 Ors Counsel for Applicant :- Atul Kumar Kushwaha,Ray Sahab Yadav Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
By way of the instant application, challenge has been made to the order dated 07.09.2018 passed by the Sessions Judge, Moradabad, in Criminal Revision No.149 of 2018 Smt. Asha Vs. State of U.P. and others and also the order dated 13.08.2018 passed by the Additional Chief Judicial Magistrate, Court No.4, Moradabad , in Case No.2420 of 2018, C.N.R. No. UP Mo-04-009355 - 2018, Smt. Asha Vs. Jagatveer Singh and others, under Section 498A I.P.C., and 3/4 Dowry Prohibition Act, Police Station Kanth, District Moradabad.
Contention to the extent that in this case without any rhyme or reason and without specific concrete reason, both the courts below have not summoned opposite party no.3 to 7. Only opposite party no.2 - husband of the applicant has been summoned, therefore, the order impugned in the instant application on the face is illegal.
In support of the contention, learned counsel for the applicants has submitted that it is clear cut statement of the complainant - Smt. Asha wife of opposite party no.2 - Jagatveer Singh that opposite party nos.2 to 7 were involved in commission of the crime and they have been assigned specific role in commission of the crime but the court below without any distinction made a reference and summoned only opposite party no.2 -husband of the applicant to face the trial while exonerating opposite party nos.3 to 7.
Learned AGA has opposed the prayer for quashment of the impugned orders.
Considered the submissions and perused the material brought on record, particularly the impugned orders passed by the lower revisional court and the court of the first instance.
Obviously, the contents brought by way of moving the complaint relates to fact that the applicant was wedded to opposite party no.2 on 14.12.2015 as per the Hindu rites wherein sufficient dowry was given but opposite party nos.2 to 7 were not satisfied with the same and they used to maltreat and torture the applicant and demanded Rs.2,00,000/- cash and one Alto Car. The applicant tried to pacify her in-laws but the appeal went in vain.
The incident took place on 28.01.2018 at about 3:00 p.m. when opposite party nos.2 to 7 after beating the applicant took her to her parental home at village Alipura Kui and destroyed all the goods of her house. At that point of time, the applicant's mother and brother had gone to work at their field and they came back and saw that opposite party no.2 - husband of the applicant had poured kerosene oil on the applicant while opposite party nos.3 to 7 had taken the applicant in their grip. The mother and brother of the applicant tried to know the reason for doing so whereupon they were told that in case dowry demand is not fulfilled, she will be put to fire. After the applicant's mother and brother became suspicious about behaviour of opposite party nos.2 to 7, they raised alarm whereupon a number of villagers arrived on the spot then the aforesaid opposite parties fled away from the scene.
Thereafter, an application was sent to the Senior Superintendent of Police, Moradabad on 27.03.2018 by registered post but no action was taken. This complaint was entertained by the Additional Chief Judicial Magistrate, Court No.4, Moradabad and statement of the applicant -complainant and her witnesses Smt. Vidyawati PW-1 and Rajendra Singh PW-2 was recorded and after considering the merit of the case and holding
that no specific circumstance or role appears to have been caused or committed by opposite party nos.3 to 7 found it not reasonable to summon them but a prima facie case was found to have been existing against Jagatveer Singh - husband of the applicant and passed the order, accordingly, on 13.08.2018. This order was challenged before the Sessions Judge, Moradabad in Criminal Revision No.149 of 2018 Smt. Asha Vs. State of U.P. and others and after considering merit of the case, revision was dismissed by the Sessions Judge on the ground that the summoning order is purely interlocutory order and remedy is barred by virtue of Section 397 Cr.P.C. which paved way for the instant application.
In the background of the aforesaid factual aspects, it is obvious that only vague allegations regarding catching hold of the applicant by opposite party nos.3 to 7 has been alleged in the complaint. The averments on the face appear to be doubtful, for the reason that the applicant being a lady was caught by as many as five persons which under circumstances was not required and it cannot be reasonably expected of them that as many as five persons had caught her. There is no specification as to what limb of the body was gripped by which one of opposite party nos.3 to 7. This being factual aspect of this case, observation made by the Additional Chief Judicial Magistrate, Court No.4, Moradabad is not faulted with and finding cannot be said to be either perverse or illegal. At this stage, the remedy of the revision is admittedly not available by invoking Section 397 Cr.P.C. because the summoning order is interlocutory order. The Sessions Judge was justified in passing the revisional order by holding that remedy of revision against the summoning order is not available to the applicant. Consequently, the order passed by the Sessions Judge, is also sustained.
For the reasons aforesaid, the orders impugned in the instant application do not suffer from any illegality or infirmity. The instant application is, accordingly, dismissed.
Order Date :- 3.10.2018 rkg
2 issues framed by the court
Whether the lower courts committed illegality or perversity in refusing to summon Opposite Parties 3 to 7 in a dowry death/eviction case.
Whether the remedy of criminal revision under Section 397 Cr.P.C. is available against an interlocutory order of summoning.
Smt. Asha
State Of U.P.
Arvind Kumar Mishra
As recorded by the court registry
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