Summoning of the accused is a serious issue and magistrate cannot issue process mechanically: J&K High Court

Jammu Wing of High Court of J&K&L
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  • Post published:September 18, 2021
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Bench of Justice Rajnesh Oswal while hearing a petition under Section 561-A CrPC (now Section 482 CrPC) has observed that summoning of the accused is a serious issue, the magistrate cannot issue process mechanically as has been done in the instant case on the basis of vague and bald allegations.

The Court also observed that the trail Court though recorded its satisfaction that offences under Sections 498-A and 406 RPC are made out as per the allegations made in the complaint but the trial Court has not made any reference with regard to the enquiry conducted under Section 202 Cr.P.C. The perusal of order impugned reveals that the same has been passed in a mechanical manner oblivious to the enquiry conducted by SHO Bakshi Nagar, that establishes the offence under Sections 498-A and 323 RPC.

In the instant case, the petitioners had prayed for quashing of proceedings arising out of criminal complaint filed by the respondent (daughter-in-law of the petitioners) under Section 498-A and 406 RPC pending before the Court of Forest Magistrate, Jammu and order dated 06-04-2016 by virtue of which the learned trial has issued process against the petitioners.

Facts:

The petitioners had stated that they are senior citizens and have been wrongly arrayed as accused in the complaint. They further had stated that they are not in contact with their son for the past more than fourteen years and are unaware of his whereabouts but the wife of the son of the petitioners besides arraying her husband i.e. son of the petitioners as accused has also arrayed the petitioners as accused.

Submissions:

It was submitted by the petitioners that the trial Court after recording the statement of the respondent as well as the witnesses, deemed it appropriate to order enquiry under section 202 Cr.P.C. and pursuant to that the SHO, Police Station, Bakshi Nagar submitted his report dated 05.04.2016, in which it was stated that the offences under sections 498-A and 323 RPC were proved, however, the trial Court ignored the said report and without mentioning the same in the order dated 06.04.2016 issued process against the petitioners.

Mr. Navyug Sethi, learned counsel for the petitioners submitted that the complaint filed by the respondent is vague as the essential ingredients of offence under section 498-A as well as 406 RPC are missing. He also submitted that in the impugned complaint, no date, time, month and year of occurrence has been mentioned and he further stated that as per own admission of the respondent, she has been residing separately since 2005 and the complaint having been filed by the respondent after 10 years, is hopelessly time barred.

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Observations:

The Court after considering the contentions made by the counsels appearing for the parties made the following observations;

“10. Further, a perusal of the preliminary statement of the respondent reveals that she has repeated the contents of complaint. In the enquiry report submitted by the SHO, Police Station, Bakshi Nagar, it has been submitted in paragraph 3of the report that both the parties had agreed that the parents of the respondent have no means to give any dowry as they have spent all the money upon the education of the respondent and as per this settlement, the marriage was solemnized between the respondent and the son of the petitioners. It has been further mentioned in the enquiry report in para 6 that the respondent has been residing in her parental home along with minor child since 2005. So from the record, it is evident that the respondent has been residing separately since 2005.”

The Court after referring to the judgment of the Apex Court in case titled Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749, observed that though the learned trial court while issuing process, recorded its satisfaction that offences under sections 498-A and 406 RPC are made out as per allegations made in the complaint but the learned trial court has not made any reference with regard to the enquiry conducted under section 202 Cr.P.C. pursuant to order dated 29.12.2015 by the SHO, Police Station, Bakshi Nagar. The perusal of order impugned reveals that the same has been passed in a mechanical manner oblivious to the enquiry conducted by SHO Bakshi Nagar, that establishes the offence under section 498-A and 323 RPC.

While holding the allegations in the complaint as vague and bald levelled against the petitioners, the Court observed that the summoning of the accused is a serious issue, the Magistrate cannot issue process mechanically as has been done in the instant case on the basis of vague and bald allegations.

While considering the issue of Criminal Breach of Trust:

The Court after referring to the Judgment of the Apex Court in Onkar Nath Mishra vs. State (NCT of Delhi), (2008) 2 SCC 561, observed that in order to prosecute a person for criminal breach of trust, there must be entrustment of the property and there is no whisper in the complaint that the respondent at any point of time entrusted the property mentioned in the list annexed with the complaint, with the petitioners. It assumes significance in view of the fact that the respondent has been residing separately since 2005 and rather statement of the respondent recorded during enquiry run contrary to the averments made in the para 8 of the complaint, in which it has been stated that the ample dowry was given. In absence of any evidence with regard to the entrustment of the property by the respondent with the petitioners, the petitioners cannot be prosecuted for commission of offence under section 406 RPC.

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While considering the issue of filing time barred Complaint:

The Court noticed that the respondent has been residing seperetely since 2005 and had filed the complaint after ten years since the separation with her husband. The Court referred to the observations made by the Apex Court in Kamlesh Kalra and others v Shilpika Kalra and others reported in 2020 SCC Online 386, wherein the Court has observed:

“As regards, the finding recorded by the High Court in respect of compliant/FIR filed under section 498-A Indian Penal Code, we are of the firm opinion that the same does not call for interference, In the facts of this case, it is clear that the FIR filed in this regard in 2015 was time barred, having been filed much more than three years after the separation of Manish Lalra (husband) and Shilpika Kalra (wife) and the filing of the divorce petition by the husband, both in 2009. In the facts of the case, the reasons given by the High Court for quashing the proceedings Under Section 498-A Indian Penal Code are justified and do not call for interference by this Court.”

The Court noted that the petitioners are at the advance age of their life have been unnecessarily dragged in a litigation by the respondent, who is having marital discord with her husband.

The Court while quashing the criminal complaint as well as the order qua the petitioners held that the proceedings initiated against the petitioners are nothing but abuse of process of law.

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Case Details:
Triloki Nath Thusoo and another vs Arti Thusoo – CRMC No. 304/2021
Coram: Justice Rajnesh Oswal
Mr. Navyug Sethi, appeared for the Petitioners
Mr. Masood Choudhary, appeared for the Respondent.