State of U.P. and Another v. Party

1. Heard learned counsel for the revisionists as well as learned AGA for the State.

2. Despite service of notice, none is present on behalf of opposite party No.2.

3. Instant Criminal Revision under Section 397/401 Cr.P.C. has been preferred by the revisionists assailing the order dated 28.07.2023 passed by Additional Chief Judicial Magistrate, Court No.9 in Criminal Case No. 50839 of 2023, under Section 323, 406 I.P.C., Police Station-Governdhan, District- Mathura.

4. The brief facts of the case are that a complaint case was moved by the husband of the revisionist-opposite party No.2 on the ground that the revisionist No.1 married opposite party No.2 in the year 2001, and four children were born from the wedlock. It was alleged that the wife subjected the opposite party No.2 and his family to continuous cruelty, abuse, and threats of false implication in dowry and rape cases. About three years prior to filing the complaint, she left the matrimonial home and went to her parental house, taking her stridhan and dishonestly misappropriating Rs. 20,000 in cash along with gold and silver jewellery belonging to the mother of opposite party No.2. When the opposite party No.2 went to Kotwan to bring her back and recover the articles, the wife and her relatives allegedly abused, assaulted, and threatened him. After recording statements of complainant and witnesses under Section 200 and 2 CRLR No. 4164 of 2024 202 Cr.P.C and upon consideration, the learned Magistrate found a prima facie case under Section 323 IPC against the relatives and under Section 406 IPC against the revisionist No.1, and accordingly passed the summoning order dated 28.07.2023, which is the subject matter of the present revision.

5. The learned counsel for the revisionist submits that the impugned order dated 28.07.2023 has been passed without properly considering the material available on record and, therefore, is not sustainable in the eyes of law. It is argued that the learned court below did not apply its judicial mind and mechanically issued the summoning order without assigning proper reasons. The complaint has been filed with ill intentions, only to harass the revisionists and to shield the complainant’s relatives from responsibility in a case previously filed by revisionist no.1 against the complainant’s brother-in-law. It is further submitted that although allegations of assault have been made, no injury report has been produced by the complainant. The complaint also does not mention the date of the alleged incident, making the allegations vague and unreliable. Moreover, the evidence on record does not support the prosecution story as stated in the complaint. For these reasons, the impugned order deserves to be set aside and the present criminal revision is liable to be allowed.

6. Per contra, learned A.G.A. for the State has vehemently opposed the submissions advanced on behalf of the revisionists. It is submitted that the court below, upon due consideration of the material available on record and upon proper appreciation of the evidence collected during investigation, has rightly summoned the revisionist. The impugned order does not suffer from any illegality, perversity, or infirmity warranting interference by this Court in exercise of its revisional jurisdiction.

7. I have heard the rival submissions advanced on behalf of the parties and perused the records.

8. The Hon'ble Apex Court case of Harshenda Kumar D. Vs. Rebatilata Koley, 2011 CrLJ 1626 (SC) has held that criminal prosecution is a serious matter as it affects the liberty of a person and no greater damage can be done to the reputation of a person than dragging him in a criminal case. 3 CRLR No. 4164 of 2024

9. In Pepsi Foods Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749, the Hon'ble Supreme Court has clarified the duty of Magistrate in passing summoning order in complaint case and has held that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

10. As per averments made in the complaint in the case in hand, the wife of the complainant did not behave properly with family members and insisted on living separately. She was used to abuse and resort to physical violence, it is also that she threatened to implicate in a false case of dowry and rape. It seems not natural that after knowing the above facts, the valuable ornaments jewelleries and cash money would have been given to the wife of the complainant for keeping it safely. No date of occurrence is mentioned in the complaint neither any explanation is given as to why this complaint is made so late after about three years. It is also not mentioned as to on what date the complaint came to know about missing of the valuable from the almirah.

11. A perusal of impugned order shows that the learned Magistrate, without considering the above discussed important facts, passed the order dated 28.07.2023 on the basis of general allegations made in complaint and the statements recorded under Section 200 and 202 Cr.P.C. which are made by complainant, his mother and brother. 4 CRLR No. 4164 of 2024

12. Thus, in view of the facts and circumstances of the case and law discussed above, present Criminal Revision is Allowed.

13. The impugned order dated 28.07.2023 is hereby set aside. The matter is remanded back to Court concerned for taking decision afresh after affording opportunity of hearing to all concerned in accordance with law.

14. The observation made herein are limited only for the purpose of deciding the instant Revision Petition and shall not be construed as an expression of opinion on the merits of the case during the trial. December 5, 2025 Karan (Divesh Chandra Samant,J.)

1. Heard learned counsel for the revisionists as well as learned AGA for the State.

2. Despite service of notice, none is present on behalf of opposite party No.2.

3. Instant Criminal Revision under Section 397/401 Cr.P.C. has been preferred by the revisionists assailing the order dated 28.07.2023 passed by Additional Chief Judicial Magistrate, Court No.9 in Criminal Case No. 50839 of 2023, under Section 323, 406 I.P.C., Police Station-Governdhan, District- Mathura.

4. The brief facts of the case are that a complaint case was moved by the husband of the revisionist-opposite party No.2 on the ground that the revisionist No.1 married opposite party No.2 in the year 2001, and four children were born from the wedlock. It was alleged that the wife subjected the opposite party No.2 and his family to continuous cruelty, abuse, and threats of false implication in dowry and rape cases. About three years prior to filing the complaint, she left the matrimonial home and went to her parental house, taking her stridhan and dishonestly misappropriating Rs. 20,000 in cash along with gold and silver jewellery belonging to the mother of opposite party No.2. When the opposite party No.2 went to Kotwan to bring her back and recover the articles, the wife and her relatives allegedly abused, assaulted, and threatened him. After recording statements of complainant and witnesses under Section 200 and 2 CRLR No. 4164 of 2024 202 Cr.P.C and upon consideration, the learned Magistrate found a prima facie case under Section 323 IPC against the relatives and under Section 406 IPC against the revisionist No.1, and accordingly passed the summoning order dated 28.07.2023, which is the subject matter of the present revision.

5. The learned counsel for the revisionist submits that the impugned order dated 28.07.2023 has been passed without properly considering the material available on record and, therefore, is not sustainable in the eyes of law. It is argued that the learned court below did not apply its judicial mind and mechanically issued the summoning order without assigning proper reasons. The complaint has been filed with ill intentions, only to harass the revisionists and to shield the complainant’s relatives from responsibility in a case previously filed by revisionist no.1 against the complainant’s brother-in-law. It is further submitted that although allegations of assault have been made, no injury report has been produced by the complainant. The complaint also does not mention the date of the alleged incident, making the allegations vague and unreliable. Moreover, the evidence on record does not support the prosecution story as stated in the complaint. For these reasons, the impugned order deserves to be set aside and the present criminal revision is liable to be allowed.

6. Per contra, learned A.G.A. for the State has vehemently opposed the submissions advanced on behalf of the revisionists. It is submitted that the court below, upon due consideration of the material available on record and upon proper appreciation of the evidence collected during investigation, has rightly summoned the revisionist. The impugned order does not suffer from any illegality, perversity, or infirmity warranting interference by this Court in exercise of its revisional jurisdiction.

7. I have heard the rival submissions advanced on behalf of the parties and perused the records.

8. The Hon'ble Apex Court case of Harshenda Kumar D. Vs. Rebatilata Koley, 2011 CrLJ 1626 (SC) has held that criminal prosecution is a serious matter as it affects the liberty of a person and no greater damage can be done to the reputation of a person than dragging him in a criminal case. 3 CRLR No. 4164 of 2024

9. In Pepsi Foods Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749, the Hon'ble Supreme Court has clarified the duty of Magistrate in passing summoning order in complaint case and has held that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

10. As per averments made in the complaint in the case in hand, the wife of the complainant did not behave properly with family members and insisted on living separately. She was used to abuse and resort to physical violence, it is also that she threatened to implicate in a false case of dowry and rape. It seems not natural that after knowing the above facts, the valuable ornaments jewelleries and cash money would have been given to the wife of the complainant for keeping it safely. No date of occurrence is mentioned in the complaint neither any explanation is given as to why this complaint is made so late after about three years. It is also not mentioned as to on what date the complaint came to know about missing of the valuable from the almirah.

11. A perusal of impugned order shows that the learned Magistrate, without considering the above discussed important facts, passed the order dated 28.07.2023 on the basis of general allegations made in complaint and the statements recorded under Section 200 and 202 Cr.P.C. which are made by complainant, his mother and brother. 4 CRLR No. 4164 of 2024

12. Thus, in view of the facts and circumstances of the case and law discussed above, present Criminal Revision is Allowed.

13. The impugned order dated 28.07.2023 is hereby set aside. The matter is remanded back to Court concerned for taking decision afresh after affording opportunity of hearing to all concerned in accordance with law.

14. The observation made herein are limited only for the purpose of deciding the instant Revision Petition and shall not be construed as an expression of opinion on the merits of the case during the trial. December 5, 2025 Karan (Divesh Chandra Samant,J.)