1. Sri Manoj Kumar Gupta, learned counsel for the revisionist/applicant, Sri Anurag Singh Chauhan learned AGA for the State and Sri Vivek Raj Singh assisted by Sri Sarvesh Kumar Dubey for respondent nos. 2 to 5.
2. The revision is formally admitted for hearing.
3. With the consent of parties, the case is heard finally.
4. Challenge in the present revision is to the order dated 15.10.2016 passed by Special Judge, SC/ST Act/Additional District Judge, Lucknow in Criminal Revision No. 0000287 of 2016, whereby the revisional court below has allowed the revision assailing the order dated 01.06.2016 passed by first Additional C.J.M., Lucknow summoning the respondent nos. 2 to 5 for alleged commission of offence under Sections 498A, 323, 504, 506 of I.P.C. read with Section 3/4 of Dowry Prohibition Act.
5. Brief facts of the case are that on 17.08.2015, a complaint case was filed by the applicant under Section 190(2) of Cr.P.C. against the respondent nos. 2 to 5 alleging in it that her marriage was solemnized with respondent no. 2 on 13.12.2014 and in the said marriage sufficient dowry was given by her father. It is alleged that since after one month of the marriage, applicant is being subjected to physical and mental cruelty, which continued even during her pregnancy. An effort was made by her to lodge a report to the police and ultimately a complaint was made to the police on 10.08.2015 and when nothing was done by the police, a complaint case was filed. In support of the complaint, the complainant examined herself under Section 202 Cr.P.C. whereas father of the complainant namely Mohd. Ayyub and one Shakeel Ahmad were also examined. After considering the statement of the complainant and the evidence of her two witnesses vide order dated 01.06.2016, learned Magistrate has summoned respondent nos. 2 to 5 for the alleged commission of offence under Sections 498A, 323, 504, 506 of I.P.C. read with Section 3/4 of Dowry Prohibition Act. The order summoning respondent nos. 2 to 5 was assailed by them in Criminal Revision No. 0000287 of 2016 and by the impugned order, the said revision has been allowed and the order dated 01.01.2016 of the Magistrate has been set aside. It is this order, which has been assailed in the present revision by the complainant wife .
6. Learned counsel for the applicant submits that the revisional court below has erred in law in setting aside the well reasoned order passed by the Magistrate summoning respondent nos. 2 to 5. The applicant and her witnesses in their 200 and 202 Cr.P.C. statement have categorically stated as to the manner in which the applicant was subjected to cruelty and prima facie case under Section 498A, 323, 504, 506 of I.P.C. read with Section 3/4 of Dowry Prohibition Act has been made out against respondent nos. 2 to 5.
7. The court below has considered the defence of respondent nos. 1 & 2 at the premature stage and has held that once on 31.05.2015, the applicant had gone along with her husband for medical check up then her contention that on 30.05.2015, she was ousted is not correct. It has been argued that the defence adduced by respondent nos. 2 to 5 could not be considered on the basis of affidavit or filing of any such document because such document cannot be either filed at the revisional stage or any finding can be recorded on the basis of said document. It has been argued that finding recorded by the court below in the impugned order is incorrect to the effect that treatment document related to 31.05.2015 has not been denied by the applicant. While referring her reply on oath, learned counsel submits that the averments made in the revision were duly denied and moreover without recording the evidence, defence adduced by respondent nos. 2 to 5 could not have been considered.
8. On the other hand supporting the impugned order, it has been argued by learned counsel for respondent nos. 2 to 5:
(i) that prima facie applicant has failed to prove her case and therefore, the court below was justified in quashing the summoning order.
(ii) that the applicant is using Section 498A as a tool and she cannot be permitted to harass respondent nos. 2 to 5 for anything.
(iii) that if the applicant had approached the court below by making some incorrect statements, respondent nos. 2 to 5 has every right to bring correct facts before the Court and to get the summoning order cancelled.
(iv) that as per own saying of applicant on 30.05.2015, she was ousted by respondent no. 2 after beating her whereas documentary evidence clearly shows the fact that on 30.05.2015, the complainant had gone to the doctor along with respondent no. 2.
(v) that apart from the prescription of the doctor, the doctor has given a separate certificate clearly mentioning therein that the applicant had attended him along with her mother-in-law and husband.
(vi) the fact that respondent no. 2 took the applicant along with him is clear from the prescription which makes it clear that only those medicines were provided, which are being used during pregnancy.
9. I have heard learned counsel for the parties and perused the record.
10. In her pleadings, the complainant has categorically mentioned about the cruelty meted out to her. Further in her statement recorded under Section 202 of Cr.P.C., she has made it clear as to the manner in which she was she was subjected to cruelty and harassment. In support of her case, complainant has also examined Mohd. Ayyub and Shakeel Ahmed and both these witnesses have supported the prosecution case.
11. In the facts and circumstances of the case, the court below was justified in summoning the respondent nos. 2 to 5.
12. I find no substance in the argument of respondent nos. 2 to 5 that as on 30.05.2015, the revisionist was taken to hospital by respondent nos. 2 to 5, her averments made in the complaint becomes false and therefore, the entire case of the complainant goes. The complainant has made several allegations and various instances being quoted by her as to in what manner she was subjected to cruelty and harassment. Merely on some particular point respondent nos. 2 to 5 being taken some defence, it does not mean that the entire case of the complainant would fall. The defence taken by respondent nos. 2 to 5 would be considered at the appropriate stage and he is required to prove all those documents, which he has filed including prescription slip and the certificate given by the doctor. If requires, the concerned doctor may also be summoned in the Court by either party for proving or disproving the documents. At the stage of summoning accused, the defence of respondent nos. 2 to 5 cannot be considered and the court below has erred in law in setting aside the summoning order.
13. It is settled position of law that in summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding...."; whereas for framing the charges, the expression used in Section 204 and 246 IPC is " there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.
14. Scope of Section 397 Cr.P.C. has been defined and considered in various judgements by the higher Courts.
"49. While hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity. Based on the charge sheet and the materials produced thereon when the Magistrate satisfied that there are sufficient grounds for proceeding, the learned Single Judge was not justified in examining the merits and demerits of the case and substitute its own view. When the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with."
See: State of Gujarat Vs. Afroz Mohammed Hasanfatta (Crimial Appeal No. 224 of 2019).
15. True it is that misuse of Section 498 of I.P.C. has been noticed by various Courts including this Court but it does not mean that by applying thumb rule, all the complaints filed by the wives can be dismissed in one stroke.
16. Prima facie, there appears to be some substance in the complaint filed by the complainant and opportunity is required to be given to the parties to lead the evidence and then only a conclusion can be drawn adjudicating the truth in the allegations levelled by the complainant.
17. Considering all the aspects of the case, I am of the view that the court below has erred in law in quashing the impugned order summoning the accused persons. The order impugned is accordingly set aside.
18. The revision is allowed.
19. The accused persons are directed to appear before the court below on 28.08.2019. If the accused persons file appropriate application seeking bail, the court below shall consider the same in accordance with law in particular the fact of pendency of the case before this Court.
20. The court below will not be influenced by any observation made by this Court while deciding the present case. After completion of trial, the trial court would be at liberty to decide the same on the basis of evidence and the law.
Order Date :- 31.7.2019 SK (Pritinker Diwaker, J.)