Delhi High Court Judgement 406/498A ( Not to summon the person listed in colum 2 of chargesheet)

IN THE HIGH COURT OF DELHI AT NEW DELHI
Unreportable

Crl.M.C. No. 924 of 2005

02.05.2007
Pronounced on : May 02, 2007


Atma Ram Singhal and Ors. .....Petitioners

through: Ms. Purnima Maheshwari, Advocate


VERSUS

State and Anr.
.....Respondents



through: Mr. Ajay K. Agrawal with
Ms. Alka Agrawal and
Ms. Anamika Agrawal, Advocates
for the respondent No.2.

CORAM :-
THE HON'BLE MR.JUSTICE A.K.SIKRI

1. Whether Reporters of Local papers may be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?


A.K. SIKRI, J.
1.The respondent No.2 is the complainant, who lodged complaint under Section
498-A/406 of the Indian Penal Code (for short, 'IPC') against her husband Anil
Singhal as well as other relations. This complaint was made to the ACP, Crime
Against Women (CAW) Cell, Pitampura. Thereafter, an FIR was registered.
Police, after investigation, filed challan under Section 173 of the Code of
Criminal Procedure (for short, 'Cr.P.C.'). Names of the petitioners herein were
put in Column No.2 in the said charge sheet. Complainant's husband, father-in-
law and mother-in-law were shown as main accused. The relation of these
petitioners, who were put in Column No.2, with the complainant's husband is as
under :-
Petitioner No.1
?
Uncle (chacha) of the complainant's husband
Petitioner No.2
?
Son of the petitioner No.1
Petitioner No.3
?
Another uncle of the complainant's husband
Petitioner No.4
?
Wife of the petitioner No.3
Petitioner No.5
?
Daughter of the petitioner No.3
Petitioner No.6
?
Son of the petitioner No.3
Petitioner No.7
?
Another uncle of the complainant's husband

2.After the filing of the charge sheet, the learned MM chose to summon all these
petitioners, who were shown as accused in Column No.2, by passing the following
order :-
?Present: APP for the State.
Accused present on bail.

IO SI Bhagwan Dass present. SI Bhagwan Dass has given his explanation.
I am not satisfied with the explanation given by him in respect of this specific
allegation made in the complaint itself. In these circumstances, as there are
sufficient grounds to proceed against the accused shown at column no.2 they be
summoned on 29.10.04.



Sd/-
MM/Delhi
30.6.04.?
The petitioners, feeling aggrieved against this summoning order, filed
criminal revision before the learned ASJ, which has been dismissed by the
learned ASJ vide order dated 19.2.2005. Challenging this order, the present
petition is filed under Section 482 Cr.P.C.

3.It is stated in this petition that Anil Singhal was married to the complainant
on 31.1.1996 according to Hindu rites and ceremonies in Delhi. The complainant,
after the marriage, initially lived for about 10-15 days at the house of the
parents of Anil Singhal, but as she was not happy to live in the joint family,
day to day fights started and the complainant also left the matrimonial house.
The parents of the husband separated the couple for all purposes to maintain
cordial relations. The complainant and her husband started living in a rental
accommodation at Sector-IX, Rohini. The complainant at that time took all her
belongings with her to her rental house. The husband also started his own
independent business under the name and style of 'Geetanjali Enterprises' at
Rani Bagh, Delhi. The couple lived together for about one year in the said
rental house and a child was also born. However, due to interference from the
parents of the complainant, the married life of the couple was not cordial and
frequent fights occurred. The couple also shifted to another house in Rohini
only and where the complainant gave birth to the second child. Meanwhile,
because of his business, the husband took a house on rent in Ahmedabad. He
wanted to shift to Ahmedabad permanently. The complainant was not interested
and refused to do so on one pretext or other. However, she kept visiting
Ahmedabad. Subsequently, the complainant filed the present complaint in CAW
Cell and FIR was registered.

4.On the basis of the aforesaid averments in the petition, it is the case of the
petitioners that order of the trial court dated 30.6.2004 is passed on
conjectures and without giving any cogent reasons for summoning the petitioners.
The order passed is not a speaking order inasmuch as the 'explanation' given by
the Investigating Officer to the purported allegations has not been brought in
the impugned order. It is further submitted that the Police had filed the charge
sheet after proper investigation and recording the statement of various
independent witnesses, who had stated that the complainant had shifted out of
the matrimonial house within 10-15 days of marriage and they never lived with
the petitioners thereafter. Statements of witnesses were also enclosed along
with the report filed by the Investigating Officer under Section 173 Cr.P.C. It
is also the case of the petitioners that all the petitioners were living
separately and just after the marriage even the couple started living away from
the vicinity of Rohini and all these factors are not even considered by the
learned trial court. It is also pointed out that the petitioners, who are
uncles of the complainant's husband and their family members, have got nothing
to do with the parents of complainant's husband and all are staying separately.
The petitioners also say that during the pendency of the case, the parties had
even arrived at settlement, as per which it was agreed that the husband would
get a decree of divorce by mutual consent and this settlement dated 26.3.2003
was signed by the complainant and her husband. Further, all the dowry articles
and stridhan of the complainant were recovered from the own possession of the
complainant either from her account in the banks and she had taken away all
her stridhan/dowry articles and other household articles etc.,
which fact was specifically taken note of in the report of the Investigating
Officer, but ignored by the learned MM.



5.It may be noted that the revision petition was filed even by the father-in-law
and mother-in-law, along with the present petitioners, which was dismissed by
the learned ASJ. However, the mother-in-law and the father-in-law of the
complainant have not joined these proceedings. Perusal of the order passed by
the learned ASJ would show that after taking note of the argument of the
petitioners that the learned MM passed the order without application of mind,
which is not as per the report prepared by the Police under Section 173 of the
Cr.P.C. This argument was brushed aside only on the ground that the Magistrate
had the power to summon even those persons whose names are placed in Column No.2
and case law is cited in support thereof. There may not be any quarrel with
this abstract proposition of law. Power of the learned MM is not in dispute.
It is the manner in which the said power is exercised was challenged. But there
is no answer to the argument that the impugned order was without application of
mind, having regard to the report of the Police under Section 173 Cr.P.C.

6.Undoubtedly, the learned MM is not to act mechanically on the basis of the
report filed by the Investigating Officer under Section 173 of the Cr.P.C. and
has to apply his own mind. He may refuse to summon any of the persons named in
the charge sheet. On the other hand, if he finds that there is prima facie
evidence against those whose names are mentioned in Column No.2, he may even
summon them along with others. However, what is important is that there should
be depiction of application of mind in the order passed. More so, when as per
the report of the Investigating Officer there is nothing against a particular
person but the MM still wants to summon him. The learned ASJ, apart from
stating the legal position to the effect that the Magistrate had the necessary
power and dismissing the revision petition on that ground, did not deal with the
argument of the petitioners herein to the effect that the order of the trial
court was non-speaking order and even a semblance of reason was not recorded as
to what were the considerations which persuaded the learned trial court to
summon these petitioners, notwithstanding the fact that their names appear in
Column No.2.

7.Section 173 Cr.P.C. prescribed that whenever a final report under that
provision is filed for consideration by the Magistrate, it gives rise to two
situations. Firstly, that the report may conclude that the offence appears to
have been committed by a particular person or persons. Secondly, that in the
opinion of the officer-in-charge no offence appears to have been committed. In
the former case, i.e. where the report discloses the commission of an offence,
three courses are open to the Magistrate viz. (a) he may accept the report and
take cognizance of the offence and issue process; (b) he may disagree with the
report and drop the proceedings; and (c) he may direct further investigation.
Coming to the latter case where the report states that no offence appears to
have been committed, the Magistrate has again three choices: (a) he may accept
the report and drop the proceedings; (b) he may disagree with the report and
take the view that there is sufficient grond to for proceeding further, take
cognizance of the offence and issue process; and (c) he may direct further
investigation to be made by the police.

8.Thus, there is no doubt that even if the report discloses that no offence
appears to have been committed, the Magistrate may disagree with the report and
take a view that there is sufficient ground for proceeding further, take
cognizance of the offence and issue process. However, the question to be
determined is as to when the MM decides to issue the process, notwithstanding
the observations of the Investigating Officer; is he to indicate some reasons
and reflect his thought process in the order as to why he is taking such a
course.



9.When the cancellation report is filed, the complainant is given an opportunity
to submit his objections to the said report. On receipt of the objections and
hearing the complainant, the Magistrate is required to apply his mind and to
consider as to whether the report is to be accepted or not. However, in case
the Magistrate decides to proceed further and orders summoning the accused, it
is incumbent upon him to deal with the conclusion of the report instead of
dismissing the same brusquely. This is so held by this Court in the case of
Ajay Khandelwal v. State and Anr., 2003 (6) AD (Del) 485.

10.In the present case, the impugned order does not show any such consideration
bestowed by the learned Magistrate. He has simply stated that he was not
satisfied with the explanation given by the Investigating Officer in respect of
?this specific allegation made in the complaint itself?. What is the 'specific'
allegation contained in the complaint to which the learned Magistrate was
referring to and what was the 'explanation' which the Investigating Officer had
tendered, which was not to the satisfaction of the learned MM, is not spelled
out in the impugned order. No doubt, at this stage, while issuing the process,
the learned MM is not required to give detailed reasons. However, when the
report under Section 173 Cr.P.C. states that it appears that no case is made
out, it is the duty of the Magistrate to at least indicate his mind as to why he
still wanted to proceed in the matter and summon the accused persons.

11.In the present case, the petitioners are put in Column No.2. The summoning
of the accused is a serious matter and, therefore, they are entitled to at least
know as to why, in the face of such a report, the learned MM still wanted to
proceed against them.

12.This petition is, accordingly, allowed and the summoning order dated
30.6.2004 is set aside. The matter is remitted back to the learned Metropolitan
Magistrate to consider the same afresh and pass appropriate orders. Trial court
record be sent back immediately.


(A.K. SIKRI)
JUDGE
May 02, 2007
nsk