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2021 Supreme(Chh) 107
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Narendra Kumar Vyas, J.
Smt. Rachana Ghale, W/o Chaman Ghale – Petitioner
Versus
Chaman Ghale, S/o Radheshyam Ghale and ors. – Respondents
CRMP No. 28 of 2016
Decided On : 06-08-2021
Advocate Appeared:
For the Petitioner:Mr. T.K. Tiwari, Advocate
For the Respondent: Mr. Manish Upadhyay, Adv., Mr. Uddhav Sharma, G.A.
Headnote:
Criminal Procedure Code, 1973 – Sections 156(3), 200, 482, 202, 156(3), 203 and 460 - Gagged her mouth forcefully by putting cloth in her mouth in order to silent her - Sustained injuries at her head, chest and mouth - Petitioner in complaint as well as in Petition are that marriage of petitioner was solemnized with respondent as per Buddhist customs - Petitioner was residing at her matrimonial home with respondents No. 1 to 3. Just after 3 to 4 days of marriage, respondents No. 1 to 3 started causing harassment to petitioner for demand of dowry making false and frivolous allegations against her - Petitioner was compelled to leave her matrimonial home and driven out from her matrimonial home - Respondent No. 1 filed divorce petition before Family Court, Durg, but application filed by respondent No. 1 against petitioner was dismissed - After dismissal of said divorce petition, respondents approached petitioner and her parents, tendered apology for their conduct and for making false allegation and filing divorce petition - Held, Magistrate takes cognizance of an offence, issues process without there being any allegation against accused or any material implicating accused or in contravention of provision of Sections 200 & 202, order of Magistrate may be vitiated, but then relief an aggrieved accused can obtain at that stage is not by invoking section 203 of Code because Criminal Procedure Code does not contemplate a review of an order - Magistrate is required to issue summons for attendance of accused only on examination of complaint and on satisfaction that there is sufficient ground for taking cognizance of offence and that it is competent to take such cognizance of offence - Once decision is taken and summon is issued, in absence of a power of review including inherent power to do so, remedy lies before High Court under Section 482 Cr. P.C or under Article 227 of Constitution of India and not before Magistrate - Irregularities which do not vitiate proceedings have been enumerated in this Section and recall of order by Magistrate for whatsoever reason does not fall within this Section - If any Magistrate is not empowered by law to recall its order impugned order is non-est, illegal and deserves to be quashed by this Court - Order passed by learned Judicial Magistrate First Class is quashed - registration of complaint will not preclude right of respondents to challenge issuance of process by Judicial Magistrate First Class - Petition is allowed
ORDER :
1. The petitioner has filed this petition under Section 482 of the Cr.P.C. against the order dated 15.10.2015 (Annexure P/6) passed by Judicial Magistrate First Class, Durg (C.G.) in Complaint Case No. 5498/2015 (Smt. Rachna Ghale Vs. Chaman Ghale), in which the learned Judicial Magistrate First Class has recalled the order dated 20.07.2015 of registration of complaint, rejected the application filed by complaint u/s 156(3) of Cr.P.C., further directed that application be treated as complaint under Section 200 of Cr.PC and fixed the case for complaint’s evidence before registration of the complaint.
2. The brief facts as projected by the petitioner in the complaint as well as in the Petition are that marriage of the petitioner was solemnized with respondent No. 1 on 07.07.2007 at Bhilai as per Buddhist customs. After marriage, the petitioner was residing at her matrimonial home with respondents No. 1 to 3. Just after 3 to 4 days of marriage, respondents No. 1 to 3 started causing harassment to the petitioner for demand of dowry making false and frivolous allegations against her. The petitioner was compelled to leave her matrimonial home and driven out from her matrimonial home on 03.03.2008. The Respondent No. 1 filed divorce petition before Family Court, Durg, but the application filed by respondent No. 1 against the petitioner was dismissed on 28.07.2008. After dismissal of the said divorce petition, respondents No. 1 to 3 approached the petitioner and her parents, tendered apology for their conduct and for making false allegation and filing divorce petition.
3. The petitioner and her family members accepted the request of respondents No. 1 to 3 and again she was living with her husband and in-laws, they again started causing physical and mental torture to the petitioner between the year 2008 to 2014 many times. In the midnight of 01-02.11.2014, respondents No. 1 to 3 again badly assaulted the petitioner as a result of which, she sustained injuries at her head, chest and mouth. When she was crying for her rescue, respondents No. 1 to 3 gagged her mouth forcefully by putting cloth in her mouth in order to silent her. The petitioner called her parents on 02.11.2014, went to police station and lodged report against respondents No. 1 to 3. Respondent No. 4 sent the petitioner for medical examination, in which, injuries were found on her chest and other parts of her body. In spite of the medical examination and receiving the injury report, respondent No. 4 has not registered any offence against respondents No. 1 to 3.
4. Learned counsel for the petitioner would submit that the learned Judicial Magistrate First Class vide order dated 20.07.2015 registered the complaint as the report was already received and thereafter, issued notice for appearance of the respondents No. 1 to 3. He would further submit that the learned Judicial Magistrate has committed mistake by recalling its order, therefore, it is against the judgment of Hon'ble the Supreme, therefore, the same is liable to be quashed.
5. This Court vide order dated 12.01.2016 issued notice to respondent No. 1 to 3, but no reply has been filed by them. The State/ respondent No. 4 has filed reply contending that this petition under Section 482 of the Cr.P.C. is not maintainable as the process initiated by the learned trial court is legal and justified and there is no abuse of process of law, therefore, this petition is liable to be dismissed.
6. Learned counsel for the petitioner would submit that the learned trial court has already issued summon to the complainant and process was already been initiated vide its order dated 27.07.2015 and thereafter the matter was listed on 22.08.2015. The case was fixed for consideration on the report submitted by the police and that matter was listed on 15.10.2015, on that date the trial court recalled its order and has rejected the report submitted by the police. The action taken by learned trial Court is amounting to recalling of summon, wh
