Parkash Kaur and Others vs Hardeep Kaur and Another

S.K. Jain, J.—The brief facts of the case which may be stated for the disposal of this petition u/s 401 Code of Criminal Procedure, are as follows :-

Hardeep Kaur respondent No. 1 was married to Jasbir Singh, son of Smt. Kartar Kaur, petitioner No. 5, herein, and brother of Kulwant Singh and Manjit Kaur, petitioners Nos. 3 and 4, and Gurbachan Singh, on 16-11-1983. A male child was born out of the wedlock on October 16, 1984 but soon after they fell out. Hardeep Kaur filed a petition u/s 125 of the Code of Criminal Procedure (hereinafter referred to as (he Code), against her husband Jasbir Singh in May, 1985, which is pending in the Court of Judicial Magistrate 1st Class, Jagadhri. On 30-5-1988 she instituted a complaint under Sections 494/511, read with Section 120B, Indian Penal Code, against Jasbir Singh and petitioners Nos. 1 to 5 as well as Balwinder Kaur and Gurbachan Singh alleging that Jasbir Singh bad performed a second marriage with Balwinder Kaur whereas others had conspired with him in committing the said offence. The trial Magistrate after recording the preliminary evidence came to the conclusion that a prima facie case under Sections 494/511, read with Section 120B, IPC was made out and, therefore, vide order of January, 4, 1989 he had summoned the accused. The said order has been impugned in this criminal revision petition by the petitioners, namely. Parkash Kaur, Narinder Kaur, Kulwant Singh, Manjit Kaur and Kartar Kaur. For the sake of clarity, it is worth mentioning here that petitioner No. 5 Kartar Kaur is the widowed mother whereas Kulwant Singh petitioner No. 3 and Manjit Kaur petitioner No. 4 arc the brother and sister, respectively, of Jasbir Singh, Parkash Kaur petitioner No. 1 is the wife of Gurbachan Singh, brother of Jasbir Singh'' and Narinder Kaur petitioner No. 2 is (be wife of Kulwant Singh positioner No. 3.

I have beard the learned counsel for the parties and with their help have gone through the record after calling for the lower Court file.

The learned counsel for the petitioners has submitted that the learned trial Court has not followed the procedure prescribed by Section 204 of the Code inasmuch as the summons were issued to the accused-petitioners without list of witnesses having been tiled by the complainant and, therefore, the impugned order was liable to be set aside. Section 204 of the Code is reproduced below for ready reference :

"204. Issue of process-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, be may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under Sub-section (I) until a list of the prosecution ''witnesses has been filed.

XX XX XX XX."

An analytical examination of the abovesaid provisions of Section 204 of the Code shows that if the Magistrate was of the opinion that there was sufficient ground for proceeding against the accused summons shall be issued for the attendance of the accused in a summons case and further that no summons shall be issued against the accused until a list of prosecution witnesses was filed by the complainant. A perusal of the record of this ease shows that the complaint was placed before the learned Magistrate for the first time on 30-5-1988. He adjourned the same for recording the preliminary evidence of the complainant on 26-7-1988 when the statement of the complainant Hardeep Kaur was recorded as P.W. 1. Then the case was adjourned to 17-9-1988 when after recording the statement of Mehar Singh PW 2 the preliminary evidence was closed. The case was adjourned to 14-10-1988 and then to 12-11-1988 on which date it was again adjourned to 2-12-1988 and then to 3-1-1989. On 4-1-1989, the learned trial Magistrate found that a prima facie case was made out against all the accused and, therefore he directed them to be summoned for 7-2-1989. At page 13 of the lower Court file there is a list of witnesses which is dated 6-1-1989. The summons issued to Narinder Kaur, Bulwinder Kaur, Manjit Kaur. Parkash Kaur, Kartar Kaur, Kulwant Singh, Gurbachan Singh and Jasbir Singh accused are attached at pages 135 to 161. A perusal of the notings on the back of these summonses shows that the same were marked to Siri Ram, Process Server on 9-1-1989. Thus, it is evident on the face of the record that the list of witnesses was filed before the issuance of the summons and hence the requirement of Sub-section (2) of Section 204 of the Code had been fully met with.

The second submission of the learned counsel for the petitioners, as also contained in ground No. 5 of the revision petition, is that the learned Magistrate did not discuss the preliminary evidence led by the complainant and did not determine whether the essential ceremonies of marriage had been undergone between Jasbir Singh and Balwinder Kaur and, therefore, he had reached a wrong conclusion. In support of his argument, he hag placed great, reliance on the ratio laid down in Raj Pal Singh and Anr. v. Smt. Raj Dulari @ Rejeshwari Singh 1990 (2) RC.R. 104 and Kabal Singh v. Balbir Kaur. 1991 (2) R C.R. 532. The fact that the said judgments were delivered in Criminal Miscellaneous Petitions u/s 482 of the Code seeking quashment of the complaints and consequent proceedings seems to have missed notice of the learned counsel. In this Criminal Revision Petition u/s 401 of the Code, the inherent jurisdiction of this Court u/s 482 of the Code, read with Article 227 of the Constitution, cannot be invoked. u/s 204 of the Code if the Magistrate taking cognizance of an offence was of the opinion (hat there was sufficient ground for proceeding he shall issue a summons for the attendance of an accused in a summons case and a warrant in a warrant case. It is settled law that at the stage of summoning the Magistrate is not required to meticulously examine and evaluate the evidence. He is also not required to record detailed reasons. A brief order indicating that he had applied his mind is all that is expected of him at that stage. Herein, he recorded the statements of the complainant as PW 1 and her witness Mehar Singh PW 2, discussed the same in detail in para No. 2 of the impugned order and formed an opinion that there was sufficient ground for proceeding against the accused and then he had passed the impugned order for summoning the accused. It cannot, therefore, be said that he bad not applied his mind to the case in hand. That being so, I do not find any incorrectness, impropriety or irregularity, much less any illegality in the impugned order which is hereby Confirmed.

Resultantly, this petition fails and is dismissed.