Kapil vs State of U.P. and Others

R.K. Rastogi, J.—This is a revision against the order dated 8.6.2006, passed by the Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 2, Nagina, Bijnor in Criminal Case No. 304/2006, Kapil Kumar v. Vijai Pal Singh and Ors., under Sections 380 and 457 I.P.C., P. S. Nagina Dehat district Bijnor.

The facts relevant for disposal of this revision are that the complainant revisionist had filed the aforesaid complaint before the court below against accused opposite parties No. 2 to 5 with these allegations that his marriage had taken place with Beena alias Beenu and he was keeping her in village Alla Hedi, P. S. Nagina Dehat district Bijnor in a separate house away from his parents. Veenu committed suicide. Her father Vijai Pal Singh (accused opposite party No. 2) wanted to extract money from him after death of Beenu and when he refused to pay any amount, Vijai Pal Singh lodged a false report against the complainant and his parents levelling allegation of dowry death. Hence, the complainant and his parents were sent to Jail. Accused Vijai Pal Singh and his associates named Manoj, Vijai Barber, and Bhoorey (accused opposite parties No. 2 to 5) started to threaten the complainant revisionist''s servant Amar Pal and asked him not to look after the house of the complainant and do his agricultural work. On 7.10.03 all the above named accused persons came to the complainant''s house at about 4 p.m. and asked his servant Amarpal to leave the house and they took away the complainant''s Motor Cycle Hero Honda Splendor No. U.P. 20G 1249 worth Rs. 40,000 alongwith its documents from his house. Then they went to the house of his parents and took away 10 Sarees with peety coats, blouses, five gents suits, shirts and pants, 12 ladies suits Salwar and shirts, one pair of golden ear rings of his mother weighing one Tola worth Rs. 5,000 one pair golden necklace weighing two Tolas worth Rs. 10,000 one golden ring weighing five gram worth Rs. 2,500 one pair of silver Payals weighing six Tolas worth Rs. 3,000 and one silver Tagari weighing 20 Tolas worth Rs. 1,200. The accused committed theft of these items after breaking open the lock of the house. Chatur Singh, Man Singh, Amarpal, Veer Singh, Gopal, Rishipal and Surendra etc., had seen them committing this theft. A complaint in this regard was sent to the S. P., Bijnor, but since two police constables of P. S. Nagina wearing civil dress were accompanying the accused persons and since Mukesh brother of Vijai Pal and Ajaipal is posted at Nageena Dehat as Home Guard, no action was taken by the police, and since the complainant was in Jail at that time, he could not take any action at that time. When he was released on bail, he came to know about the above incidents from the witnesses, then he moved this application before the S. P., Bijnor on 26.9.05 but no action was taken. It was, therefore, prayed that action should be taken against the accused persons.

Learned Magistrate recorded statement of the complainant u/s 200, Cr. P.C. Thereafter he recorded statements of the witnesses Chatur Singh and Man Singh u/s 202, Cr. P.C.

After perusal of their statements, learned Magistrate was of the view that the statements of these persons were not reliable and a case of dowry death was already pending against the complainant and his parents and so the present complaint appears to have been filed as a counter blast to that case only to pressurise his father-in-law (accused Vijai Pal Singh) so that his father-in-law may not give evidence against him in the case of dowry death. With these observations he dismissed the complaint. Aggrieved with that, the complainant has filed this revision.

I have heard learned Counsel for the revisionist as well as the learned A.G.A., and the learned Counsel for the opposite parties No. 2 to 5.

Learned Counsel for the revisionist submitted before me that the scope of inquiry under Sections 200 and 202, Cr. P.C. is limited to find out whether a prima facie case is made out against the accused persons for summoning them or not, and the evidence adduced by the complainant at the stage of inquiry under Sections 200 and 202, Cr. P.C. is not to be adjudged on those standards which are prescribed for conviction of the accused persons. He cited before me a ruling of Hon''ble Supreme Court in Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, in support of his contention.

I have gone through this ruling and also perused the complaint as well as the statements of the complainant and witnesses under Sections 200 and 202, Cr. P.C. I have also perused the order passed by the learned Magistrate. It appears from perusal of the order that the learned Magistrate rejected the complaint mainly on the following grounds :

The complainant had not produced his servant Amar Pal who had been deputed to look after the house of the complainant and of his parents as well as their agricultural work and was an eye- witness of the incident.

The statements of the witnesses were self contradictory ;

Witnesses in their statements u/s 202 Cr. P.C., have given full particulars of the stolen items and those witnesses outside the house could not know the particulars of those items which had been allegedly stolen by the accused inside the house.

The case of dowry death was pending against the complainant and his parents and this complaint was a counter blast to that case only with a view to pressurise accused Vijai Pal Singh who had already lodged a F.I.R. against the complainant and his parents in that case of dowry death.

It was submitted by the learned Counsel for the revisionist that the above case of dowry death was totally false. He submitted that Beenu was residing with her husband (complainant) in a separate house away from the parents of the complainant and the complainant''s parents have been unnecessarily and falsely implicated in the case of dowry death. He further submitted that actually Beenu had committed suicide and this fact is apparent from the post mortem report ; according to which ligature mark around the neck of Beenu was found interrupted and there was no injury on her body except the ligature mark. He contended that after death of Beenu, in the absence of complainant and his parents, the accused took away the Motor Cycle and other ornaments and clothes etc., mentioned in the complaint from their house and there was no false implication. He submitted that the statements of the complainant and witnesses made out a prima facie case for summoning the accused persons, and the learned Magistrate erred by overlooking this evidence.

A perusal of the order passed by the learned Magistrate reveals that the complainant had not produced his servant Amarpal who had been deputed to look after the house of the complainant and his parents. It is to be seen that in the inquiry under Sections 200 and 202, Cr. P.C. the Magistrate has to inquire into the case for the purpose of deciding whether or not there are sufficient grounds for proceeding with the case. The Magistrate, while inquiring into the case, has got jurisdiction to summon a person who, according to him, can depose about the fact of the case. If the Magistrate was of the view that the evidence of Amarpal was essential for the purpose of inquiry, he could have asked the complainant to produce Amarpal.

He has further pointed out that the statements of witnesses Chatur Singh and Man Singh, in which they have given complete description of the items taken by the accused persons, did not inspire any confidence because they having remained out side the house, could not see as to what items were stolen by the accused persons inside the house. He could have questioned these witnesses on this point. He has further pointed out that Man Singh has stated that the accused took all these items in a Trolley. He has pointed out that the fact that the goods were carried in a trolley has not been stated by the complainant nor by the witnesses. He could question these witnesses on this point also. He has also observed in his order that the story of theft appears to be false and fabricated as a counter blast to the dowry death case against him. On the other hand, allegation of the complainant is that the accused Vijai Pal, on account of death of his daughter, took away all these items in the absence of complainant and his parents when they were in Jail. Both these possibilities are there.

It is to be seen that the law on this point is that at the stage of summoning an accused, evidence is not to be adjudged from the point of view of conviction. As I have pointed out above, if the Magistrate was not satisfied with the evidence produced by the complainant, he could have directed the complainant to produce Amar Pal and other witnesses, if any, and he could have questioned the witnesses on so called improbabilities and contradictions in their statements. The accused need not be summoned where the complainant fails to make out any case against the accused persons or where the prosecution story is such or the evidence in support of which is such as appears to be absurd and does not inspire any confidence ; but if there appears a prima facie case against the accused persons on the basis of inquiry under Sections 200 and 202, Cr. P.C. the accused are to be summoned on the basis of that evidence.

The revision, in this way, deserves to be allowed and the order passed by the learned Magistrate is liable to be set aside.

The revision is, accordingly, allowed. The order dated 8.6.2006, passed by the Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 2, Nagina, Bijnor in Criminal Case No. 304/2006, Kapil Kumar v. Vijai Pal Singh and Ors., under Sections 380 and 457, I.P.C., P. S. Nagina Dehat district Bijnor is set aside. The matter is remanded to the Court concerned for making further inquiry in the light of the observations made in the body of the judgment and then to pass an order in accordance with law.