Rattan Chand vs Tarsem Lal

V.S. Aggarwal, J.

This is a petition filed by Rattan Chand and another (hereinafter described as ''the petitioners'') under Section 482 Cr.P.C. for setting aside the order dated 30.3.1988 of the learned Judicial Magistrate Ist Class, Chandigarh in the criminal complaint, Rattan Chand v. Tarsem Lal.

The relevant facts alleged are that petitioner No. 2 Smt. Anita Kumari was married with respondent No. 1 in November, 1984. Sufficient dowry was provided by petitioner No. 1 who is the father of petitioner No. 2. After the marriage, petitioner No. 2 and respondent No. 1 cohabited and lived together. They were blessed with a child in July, 1985. It was found that respondent No. 1 was addicted to excessive drinking. He was cruel and inhuman. Petitioner No. 2 was beaten on several occasions without any rhyme and reason. Petitioner No. 1 told respondent No. 1 to behave better but without results. In the last week of February, 1985 petitioner No. 2 was beaten by respondent No. 1 and turned out of the house. The female child was born in the house of her parents. Subsequently, petitioner No. 2 filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage. The said petition was allowed and divorce was granted. The dowry articles were never returned by respondent No. 1. A complaint was filed by petitioner No. 2 against the respondents with respect to offences punishable under Section 406 IPC, read with Section 6 of the Dowry Prohibition Act, 1961. After recording of the preliminary evidence, summons were issued and respondents appeared before the learned Judicial Magistrate. Some of the dowry articles even were returned.

It is contonded that on 30.3.1988 the lawyers were on strike. The learned Judicial Magistrate wanted to discharge the respondents. Petitioner requested for an adjournment. But the statement of the petitioner was recorded and respondents were discharged. It is contended that the said order passed is illegal, and deserves to be set aside because the dowry articles have not been returned and in fact there was no such compromise.

On perusal of the petition and looking on the facts of the same, it is clear that it is an abuse of the process of the Court. On 30.3.1988 the petitioner had appeared before the Judicial Magistrate, Chandigarh. Her statement had been recorded and thereupon the learned Judicial Magistrate had passed the following order :

"30.3.1988. Present : Complainant in person

In view of the statement of the complainant, the complaint is dismissed as withdrawn. Accused are discharged of the offence for which they were summoned to face trial. File be consigned to the record room."

It is crystal clear from aforesaid that petition was dismissed on the statement of the complainant. Now to urge that lawyers were on strike on 30.3.1988 at Chandigarh, will cut no ice. This is for the obvious reason that if lawyers were on strike, there was no occasion for the petitioner to make the statement. The statement must be deemed to have made voluntarily. There are no facts or circumstances which would permit this court to conclude that it was not made voluntarily. In the absence of those circumstances the judicial record must be believed and consequently there is no hesitation in concluding that petitioner herself has made the statement withdrawing the complaint.

Confronted with that position the learned counsel urged that without recording of the evidence, the respondents could not be discharged and, therefore, the order which is impugned cannot be sustained. In the facts of the case even the said argument must be rejected. Sections 244 and 245 of the Code of Criminal Procedure read :

"244. Evidence for prosecution. (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.

....

When accused shall be discharged. (1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any prebvious stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

Perusal of these provisions shows that under Section 244 Cr.P.C. the Magistrate has to take such evidence as may be produced in support of the case of the prosecution. Under subsection (1) of the Section 245 Cr.P.C., the Magistrate has to consider the evidence that has been produced. If the person does not choose to produce the evidence, then it would be a case of no evidence. There would be no legal embargo in discharging an accused when no evidence is produced. In the present case when no evidence was produced and complainant was not interested in prosecuting the complaint, the Magistrate rightly felt that respondents are to be discharged. There was no evidence that if it was unrebutted, the respondents could be convicted. Therefore, there is no ground to interfere in the impugned order.

For these reasons, the petition fails and is dismissed.