Sursati and Others vs State of U.P. and Another

Vinod Prasad, J.—Heard Sri Rama Nand Pandey learned Counsel for the applicants in support of this criminal misc. application at the stage of admission and the learned A.G.A. in opposition.

Applicants who are husband, father-in-law and mother-in-law of complainant Respondent No. 2, have prayed for quashing of proceeding launched by her, being Complaint Case No. 2011 of 2007, Smt. Bahawan v. Budhayee and 3 others Complaint Case No. 2011 of 2007, under Sections 452, 498A, 323, 504, 506, I.P.C., Police Station Sahjanwa pending before IIIrd Judicial Magistrate, District Gorakhpur.

Allegations against the applicants, in bird eye view, are that complainant Respondent No. 2, Smt. Bahawan was married to Budhayee (Non-applicant) son of Sursati (applicant No. 1) and Fanci (applicant No. 2). Applicant No. 3 Mahendra is her dewar. Smt. Bahawan was blessed with four issues from the wed lock namely Gunja, Chandan, Madan, and Nandan. Subsequent to her marriage, her Dewar Mahendra, applicant No. 3, also got married and in his marriage a motor cycle was given in dowry. Resultantly, because of greed, a demand of a Hero Honda Motor Cycle was made from Smt. Bahawan, the complainant, as well by her husband, father-in-law, mother-in-law and her dewar. Complainant repeatedly requested that her parents are not in a position to fulfil the demand but her plea went unheeded. The accused including the three applicants - her dewar and two in-laws, in lieu of motor cycle, even offered an option to her to pay the price of the said Hero Honda motor cycle. Non fulfilment of demand resulted in torture and harassment of complainant wife, both physically and mentally, and she was even kept hungry. Father of the complainant, when received the information regarding her daughter''s torture and harassment, he tried to pacify the accused but, because of their maliciously rapacious conduct, his request also went unheeded.

Meanwhile, husband Budhayee abducted Bindu, a girl of class IX of his village which crime engulfed an atmosphere of terror in the village, because of which, complainant had to shift to her parental house along with her children.

On 29.10.2007, Budhayee (husband), Fanci (father-in-law), Mahendra (dewar) came to the parental house of the complainant and repeated their demand of Hero Honda motor cycle. They also informed complainant that Budhayee, her husband, has solemnized a second marriage with Bindu (abductee). On refusal by the complainant and her parental relatives to fulfil the demand of motor cycle, wife was assaulted in their presence and also in the presence of Village Pradhan Ram Kewal, Jarrar, Shiv Kumar and many other co-villagers. Wife sustained injuries because of the assault made on her. While retreating from her parental house the assailants threatened and accosted her that they will not take her back. Complainant got herself medically examined in district Gorakhpur, vide Annexure-2, and went to lodge a report at the police station but failed in her attempt. She then dispatched an application, through registered post, to the higher authorities but even that did not yield any result. Left with no option she filed complaint, Annexure-1, before the Magistrate, which complaint was registered as Complaint Case Number 2011 of 2007, Smt. Bahawan v. Budhayee and 3 others Complaint Case Number 2011 of 2007 under Sections 452, 498A, 323, 504, 506, I.P.C., Police Station Sahjanwa, in the Court of IIIrd Judicial Magistrate, District Gorakhpur.

Statement of complainant was recorded u/s 200, Cr. P.C. (Annexure-3) in which she fully corroborated her allegations levelled in the complaint. Her witnesses village Pradhan Ram Kewal, P.W. 1 and Jarrar, P.W. 2 also supported her allegations in all material aspects of allegations in their statements recorded u/s 202, Cr. P.C. (Annexures-4 and 5). All the three deposed that complainant was tortured and assaulted because of non-fulfilment of demand of Hero Honda Motor Cycle by her husband, father-in-law, mother-in-law, and her dewar.

7.IIIrd Judicial Magistrate, Gorakhpur finding prima facie case being disclosed against the applicants summoned them for offences mentioned above vide his order dated 7.12.2007 fixing 15.2.2008 for their appearance before him vide Annexure-6. Hence this criminal misc. application, u/s 482, Cr. P.C. for quashing of the above complaint case.

Learned Counsel for the applicants, firstly, contended that there is no allegation regarding mother-in-law in the complaint and there is total absence of evidence regarding her of committing any offence but subsequently resiled from his said submission and contended that in respect of incident dated 29.10.2007 there is no allegation against mother-in-law and she lives separately, from her son and, therefore, proceeding in her respect be quashed. He further contended that false and fictitious complaint has been filed by Respondent No. 2, the wife, and the learned Magistrate, without looking into the material on record and application of mind, has summoned the applicants. He further contended that the applicants do not have any criminal history and they are innocent persons who have been falsely implicated in the case. He also submitted that application for maintenance filed by the wife has been rejected by the lower court and a compromise was also filed by the wife in the lower court. He also submitted that the wife had gone to her parental house (maika) on her own accord and later on falsely implicated the applicants including old aged parents, father-in-law and mother-in-law, in this false case which deserves to be quashed. Learned Counsel relied upon three judgments also in N. Suriyakala Vs. A. Mohandoss and Others, A.S. Nayal and Ors. v. Khem Chand, 1983 (20) ACC 264; and B.S. Joshi and Others Vs. State of Haryana and Another,

Learned A.G.A. refuted the contentions raised by the counsel for the applicants and contrarily argued that the summoning order does not suffer from any infirmity of law and since prima facie case was disclosed in the complaint and in the recorded statements, therefore, trial Magistrate was fully justified in summoning the applicants, more so when the wife was assaulted and she had even sustained injuries. Injured wife must be afforded a chance to prove her allegations and since she was tortured, harassed, assaulted and left as a destitute along with her four small children, because of lust of motor cycle or price thereof, by her in-laws and her husband, therefore, accused must be prosecuted and this application being bereft of any merit deserves dismissal submitted learned A.G.A.

I have considered the rival submissions and have gone through the record of this Criminal Misc. Application which is devoid of merit and deserves to be dismissed for the reasons mentioned below.

The contentions of learned Counsel for the applicants that the application by the wife u/s 125, Cr. P.C. was dismissed and that she had entered into a compromise are all submission without any pleading and any documentary evidences appended along with this application. These contentions were raised without any basis. They are bereft of any reasoning much less to say a legal one. These submissions were raised against the factual matrix of the pleadings and the facts of the case only to be repelled. Raising arguments without any pleading and without any basis is not to be appreciated and, therefore, I reject all those submissions which were advanced without being pleaded nor any document in respect of which has been filed in this Criminal Misc. Application.

Coming to the argument of learned Counsel for the applicant that there is no allegation of demand of dowry by mother-in-law, applicant No. 1, the said argument is contrary to the prosecution allegations. Complainant and her witnesses have specifically stated that husband, father-in-law, mother-in-law and dewar all demanded Hero Honda motor cycle or it''s price in lieu thereof and inability of the complainant and her parents to fulfil the same resulted in beating of the wife. Their statements are clear and do not admit any exception. Assault on the wife was made in her parental house because of non-fulfilment of the said demand. Thus the allegations clearly shows that the offence of 498A, I.P.C. continued and in that continuation the wife was beaten. Hence summoning order of mother-in-law, who also demanded motor cycle, has been rightly passed by the trial Magistrate. Once the offence is a continuing offence then presence of mother-in-law at every stage of demand and even at the time of assault on the wife is not essential but it cannot be said that she has not committed any offence. She is a privy to offences under Sections 498A, 504 and 506, I.P.C. and 3/4 Dowry Prohibition Act. In such a view the contention of learned Counsel for the applicants is wholly codswallop and merit less and is also against the facts of the case and hence is repelled.

Coming to the next argument that the impugned proceeding is mala fide and no offence is disclosed, the said argument is wholly unmerited. At the stage of summoning only a prima facie case is to be seen. In a complaint case only the allegations levelled in the complaint, statement under Sections 200 and 202, Cr. P.C. have to be looked into to find out whether a prima facie case is disclosed or not against the accused? Once a prima facie case is disclosed and the Magistrate is of the opinion that there is sufficient ground for proceeding he has to summon the accused u/s 204, Cr. P.C. It is noted here that u/s 204, Cr. P.C. Legislature has used the words "if in the opinion of the Magistrate, there is sufficient ground for proceeding...." These words clearly indicates that if there is some credible statement and allegation of commission of any offence which requires to be tested by the Court to punish the guilty then the Court has to summon the malefactors. At the stage of summoning critical appreciation of levelled allegations have not to be undertaken and only a prima facie case is to be seen. Un-naturality, vexatious and mala fide prosecution, false allegations, all these defences have to be looked into only at the time of finally deciding the case and not at the stage of summoning. For the purposes of summoning, once there is sufficient ground for proceeding, plea of mala fide and vexatious prosecution relegates into the background. Thus the referred contention of learned Counsel for the applicant in this para is also repelled.

Referring to the rulings cited by learned Counsel for the applicants, so far as B.S. Joshi''s case (supra) is concerned the said decision does not apply at all. That was a case of a compromise between spouses and not of assault on the wife who seeks justice for her to get her assailants punished. The said judgment cannot be allowed to exonerate completely, without trial, the accused of assault on the wife for their rapacity.

The decision of A.S. Nayal (supra) is a wholly misplaced referred decision. That was a case where a driver had implicated Executive Magistrates for offence of robbery and assault because he had made some complaint against those Executive Magistrates to the District Magistrate. The complaint by the driver was lodged one month and ten days after the incident. Hence the said decision also does not help the applicants.

So far as decision in N. Suriyakala (supra) is concerned, the said decision by the Apex Court is related with exercise of it''s power under Article 136 of the Constitution of India. The said judgment is no authority for the proposition the complaint of an injured wife be quashed on the ground of malicious prosecution. The ratio of the said decision has no relevancy on the facts of present case. Law of Precedent requires that a judgment has to be read as to what it actually says and not for what it could have been said. Further Law of Precedent cannot be pressed into service to be applied on totally different facts and circumstances. Hence the said decision is also of no help to the applicants.

This criminal misc. application, for the reasons above, is wholly meritless and is hereby dismissed at the stage of admission itself.