Allowed

Jaswant Singh and Ors. v. State of Uttarakhand and Anr.

Uttarakhand HC28 Oct 2013C482/363/2010

Case brief

AI extract

What is this about?

In a criminal restitution application under Section 482 Cr.P.C., the High Court of Uttarakhand quashed the summoning order against the husband's relatives, holding that the evidence was insufficient to justify their trial under Section 319 Cr.P.C. in a matrimonial dispute.

What did the court decide?

The summoning order dated 06.04.2010 passed in Criminal Case no. 1030 of 2009 against the applicants is hereby quashed.

Jaswant Singh and Ors. Vs State of Uttarakhand and Anr. — Dowry and Cruelty | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482) No. 363 of 2010

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……. Jaswant Singh and others Applicants

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versus

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State of Uttarakhand & another ……. Respondents

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Mr. S.K. Mandal, Advocate for the applicants. Mr. P.S. Saun, AGA for the State / respondent no. 1.

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U.C. Dhyani, J.(Oral)

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The applicants, by means of present application / petition under Section 482 of Cr.P.C., seek to quash the summoning order dated 06.04.2010, passed in criminal case no. 1030 of 2009, State vs Rajveer Singh (arising out of case crime no. 488 of 2007), under Section 498-A of IPC and Section ¾ of the Dowry Prohibition Act, relating to police station Sitarganj, District Udham Singh Nagar, pending before the court of Addl. Judicial Magistrate, Khatima.

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Respondent no. 2 gave a complaint to Circle Officer, police station, Sitarganj on 30.12.2006, for taking action against the accused persons, namely, her husband, father-in-law, mother-in-law, brother-in-law, sister-in-law, uncle-in-law and aunt-in-law. Thereafter respondent no. 2 lodged an FIR against seven accused persons on 02.03.2007 in police station Sitarganj, which was registered as case crime no. 488 of 2007, under Section 498-A of IPC and Section ¾ of the Dowry Prohibition Act. After the investigation, a charge-sheet was submitted against the husband of respondent no. 2. Cognizance was taken on the

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same and Rajveer Singh (husband of respondent no. 2) was summoned to face the trial. Trial commenced. Statement of the accused Rajveer Singh was recorded. Thereafter, PW1 Smt. Manjeet Kaur entered into the witness box to depose in favour of her FIR.

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PW1 Smt. Manjeet Kaur supported the contents of her FIR (Ext. Ka-1) in her examination-in-chief. Smt. Manjeet Kaur also implicated her father-in-law, mother-inlaw, brother-in-law, sister-in-law, uncle-in-law and aunt-inlaw and said that they were also involved in harassing her on account of not bringing sufficient dowry. Respondent no. 2 also said that her neighbour Nirmal Singh witnessed the incident but connived with the accused persons. She further said that Bachan Singh, Pyara Singh, Laxman and Om Prakash also witnessed the incident but they too have connived with the accused persons.

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In her cross-examination, respondent no. 2 said that she gave an application to Senior Superintendent of Police, Udham Singh Nagar, but the same is not available on record. Respondent no. 2 was married to Rajveer Singh in a Gurudwara. Rajveer Singh has remarried to another woman. Respondent no. 2 admitted that she did not indicate the names of Kirpal Singh, Nirmal Singh, Bachan Singh and Pyara Singh in her complaint (Ext. Ka-1). She also did not indicate the dates on which she was harassed and assaulted by the accused persons. Respondent no. 2 also admitted that she did not go to the Medical Officer for examination of her injuries. It was also admitted that

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accused persons belong to her community. Respondent no. 2 also said that she was ready to go with her husband Rajveer Singh. Why they (accused persons) don’t take her (respondent no. 2) to their house?

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Learned counsel for the applicants submitted that the case against Rajveer Singh (husband of respondent no. 2) is already pending before learned Addl. Chief Judicial Magistrate, Khatima. Rajveer Singh is not the applicant in the present application under Section 482 of Cr.P.C. Only those persons, who were summoned under Section 319 of Cr.P.C., are the applicants in the instant petition under Section 482 of Cr.P.C.

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Learned counsel for the applicants drew attention of this Court towards a copy of the divorce deed dated 18.08.2006, whereby Smt. Manjeet Kaur (respondent no. 2) received a sum of Rs. 1,90,000/- from Rajveer Singh and agreed not to pursue any case, civil or criminal, in this context. Learned counsel for the applicants contended that summoning of the accused-applicants under Section 319 of Cr.P.C. was nothing but abuse of the process of the court, in as much as the impugned order dated 06.04.2010, whereby the accused-applicants were summoned to face the trial, was passed contrary to the scheme of law.

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It is further contended by learned counsel for the applicants that learned Addl. Judicial Magistrate, Khatima ought not have summoned the applicants under

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Section 319 of Cr.P.C., on the basis of the sole testimony of PW1 Smt. Manjeet Kaur.

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It was held by Hon’ble Apex Court in Brindaban Das and others vs State of West Bengal, (2009) 2 SCC (Cri) 79 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 to also 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.

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It was observed by Hon’ble Supreme Court in Sarojben Ashwinkumar Shah etc. vs. State of Gujarat and another, 2011 (2) N.C.C. 414 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

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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.

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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 vs State of Punjab and another, 2009 AIR SCW 4236 . Relevant extract of the judgment is reproduced here-in-below:

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“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.

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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.”

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It will also be useful to take into account the possibility of implicating the near relatives of the husband in matrimonial disputes, as was observed by the Hon’ble Supreme Court in Preeti Gupta and another vs State of Jharkhand and another, (2010) 7 SCC 667 , that it is a matter of common experience that most of the complaints under Section 498-A 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.

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In the instant case, on the basis of quality of evidence adduced by the prosecution, in so far as the applicants are concerned, it is difficult to hold with any amount of certainty that the same would, in all probability, secure the conviction against the applicants. It would,

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therefore, be not proper to subject the applicants to trial by invoking the provisions of Section 319 of Cr.P.C.

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In view of the above discussion, the application under Section 482 of Cr.P.C. deserves to be allowed and the same is, accordingly, allowed. Summoning order dated 06.04.2010, passed in criminal case no. 1030 of 2009, State vs Rajveer Singh (arising out of case crime no. 488 of 2007), under Section 498-A of IPC and Section ¾ of the Dowry Prohibition Act, relating to police station Sitarganj, District Udham Singh Nagar, pending before the court of Addl. Judicial Magistrate, Khatima is hereby quashed qua applicants.

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Dt. October 28, 2013. Negi

Jaswant Singh and Ors. v. State of Uttarakhand and Anr.

Case brief

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Jaswant Singh and Ors. v. State of Uttarakhand and Anr.

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