Samsher son of Dhupa vs Than Singh

J.B. Garg, J.

Samsher son of Dhupa and Smt. Bharto widow of Dhupa, residents of Khanpur Tehsil Barwala District Hisar, have moved the present petition under Section 482 of the Code of Criminal Procedure, challenging the summoning order dated 26.2.1992 passed by the SubDivisional Judicial Magistrate, Narwana, for offences under Sections 4 and 6 of the Dowry Prohibition Act.

Briefly, the facts are that Sant Kala daughter of Than Singh, the complainant, was married with Subhash son of Chhajju on 6.6.1983. After her sudden death, a case vide First Information Report No. 53 was registered on 21.4.1987 for offences under Section 306/498A and 201 of the Indian Penal Code. Several years after the marriage and death of Sant Kala, the daughter, the present complaint has been instituted by the aggrieved father for offences under Sections 4 and 6 of the Dowry Prohibition Act and the learned trial Magistrate has summoned Samsher, a nephew of Chhajju, father of Subhash husband and also Bharto, who is the widow of brother of Chhajju.

On behalf of two petitioners, it has been specifically pointed out that their ration card is separate and they pay Chulha tax separately from Chhajju, fatherinlaw of Sant Kala. Samsher and Bharto have been acquitted by a Division Bench of this Court and their appeal was decided on 25.4.1990 and reported as Subhash and another v. State of Haryana, 1990(3) Recent Criminal Reports 18 .

The learned counsel for the two petitioners has rightly urged that the summoning order qua the two petitioners, has no merit inasmuch as they had been residing separately from Sant Kala and her husband Subhash from the very beginning.

On behalf of the petitioners, attention has been invited to Haryana Act No. 38 of 1976 whereby Section 7 of the Act has been amended and Clause (c) thereof has made it mandatory that the cognizance shall be taken only if there is previous sanction of the District Magistrate or of such officer as the State Government may, by general or special order, specify in this behalf. In this regard, attention has also been invited to Likhi Ram and others v. Bane Singh and another, 1988(2) Chandigarh Law Reporter 138 and in the absence of required sanction as well, the impugned order qua the two petitioners could not be sustained. This position of law has not been controverted by Shri Bhoop Singh, the learned counsel for the respondent. The conclusion is that, the present petition succeeds and the impugned order dated 26.2.1992, is quashed qua the present two petitioners.