Sukhwinder Kaur and Another vs Harjinder Kaur

S.D. Bajaj, J.—Heard. Claim for quashing of the complaint Annexure P. 1 having been dismissed as withdrawn on 22nd November, 1988, Cr. Misc. 8580-M of 1988 can be proceeded with only in regard to the summoning orders Annexures P. 2 and P. 3.

Learned counsel for the respondent wife referred to the observa-tions made in Subhag Rani v. Dharam Pal, 1985 (2) Recent Criminal Reports 162 and urged that the revision against the summoning orders foresaid being legally maintainable, quashing petition against them does not He. There is absolutely no merit in the argument advanced because in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, AIR 1976 Supreme Court 1947 it was observed by the Supreme Court, "Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside; where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused." Quashing petition is thus competent against the summoning orders Annexures P. 2 and P. 3.

Summoning order Annexure P, 2 is obviously illegal because the complainant had not produced before the learned trial court any sanction from ''the District Magistrate in terms of Section 8A of the Dowry Prohi-bition Act, 1976.

Adverting to the summoning order Annexure P. 3, it must be said that the provisions under Sections 406 and 420 of the Indian Penal Code are mutually exclusive. Order summoning the respondent under both the provisions aforesaid is legally unsustainable.

In result both the summoning orders Annexure P. 2 and P 3 having been passed by the learned trial court without any application of mind as envisaged in the relevant provisions of Section 204 of the Criminal Procedure Code deserve to be quashed. The relevant section reads;

(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 atten-dance of the accused, or (b) a warrant case, he 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 (1) until a list of the prosecution witnesses has been filed.

(3) If a proceeding instituted upon a complaint made in writing every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of iuch complaint.

(4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provi-sions of Section 87."

It has repeatedly been held by this court that the order of the learned trial court issuing the processes must be a speaking order contai-ning the grounds which, in the opinion of the learned trial court, are sufficient for the issuance of the processes. Application of judicious mind to the facts and circumstances obtaining in any particular case is absolutely necessary and there has to be & mention of it in the summoning order. A summoning order made without any application of mind is ab-initio void and illegal and is liable to be quashed u/s 482 of the Criminal Procedure Code.

In result, Criminal Misc. No. 8580-M of 1980 succeeds and is allowed to the limited extent aforesaid. The learned trial court would now proceed in the complaint from the stage obtaining before it, prior to the making of the summoning orders, in accordance with law. It may be clari-fied here that the petitioners would be entitled to raise before the learned trial court in their defence all the pleas taken by them in this Court for quashing of the complaint Annexure P. I and the respondent-complainant may in turn assert before the learned trial court that besides Section 406 of the Indian Penal Code allegations in the complaint also make out a case u/s 498A of the Indian Penal Code against the petitioners.