Monday, March 24, 2008

Atma Ram Singhal and Anr. Vs State of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : INDIAN PENAL CODE
Crl.M.C. No. 924 of 2005
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.
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.
Sd./-
A.K. SIKRI,J
May 02, 2007

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