Family members cannot be summoned for an offence under Section 495 IPC unless they are directly involved in the commission of the offence under Section 494 IPC.

Hon’ble Rakesh Thapliyal, J.

1. Mr. Narendra Bali, learned counsel for the applicants.

2. By the instant criminal miscellaneous application preferred under Section 528 of Cr.P.C . the applicants are challenging the proceedings of Complaint Case No. 63 of 2024 ‘Vineeta Saini vs. Dilip Saini and others’ pending in the court of Judicial Magistrate/3rd Additional Civil Judge, Haridwar, wherein, by the order dated 18.03.2024, all the applicants have been summoned for the offence punishable under Section 495 of IPC . The another accused person Dilip Saini, who is the husband of the complainant has also been summoned for the offence punishable under Section 494 of IPC ; however, the husband Dilip Saini is not before this Court.

3. The son of applicant no. 1-Dilip Saini married with the respondent/complainant on 16.01.2013, but due to differences that there was a repeated demand of dowry the complainant was harassed by her husband and the family members and the respondent/ complainant left the matrimonial house in the year 2017 and since then they are living separately.

4. Subsequently, the complaint was filed by the respondent/complainant against her husband and in-laws and other family members on 04.01.2024 with the allegation that Dilip Saini remarried with one Neetu Saini, resident of Sadoka Alawalpur. P.S. Chhutmalpur, Saharanpur, in the year 2020 and for this second marriage all the applicants gave full assistance to the husband.

5. On the said complaint the statement under Section 200 and 202 of Cr.P.C . were recorded and thereafter the learned Judicial Magistrate/3rd Additional Civil Judge, Haridwar, by the order dated 18.03.2024 summoned all the applicants for the offence punishable under Section 495 of IPC and so far as Dilip Saini, who is the husband of the complainant, is concerned, he was summoned for the offence punishable under Section 494 of IPC .

6. Learned counsel for the applicants submits that the present applicants, who are in-laws and other family members of Dilip Saini cannot be summoned for this offence punishable under Section 495 of IPC since on plain reading of Section 495 of IPC the persons, who commit offence under Section 494 IPC can only be summoned for the offence punishable under Section 495 of IPC .

7. I found force on the submissions of the learned counsel for the applicants and since all the applicants are the family members of Dilip Saini, who as per the FIR got remarried with another lady; therefore, prima-facie, this Court is of the view that the Trial Court without application of mind summoned all the applicants.

8. Issue notice to the respondent. Learned counsel for the applicants shall take steps within a week returnable within three weeks with acknowledgement due.

9. Let the respondent may file counter affidavit within a period of four weeks.

10. Thereafter, two weeks’ time is granted to the learned counsel for the applicants to file rejoinder affidavit.

11. List this matter on 10.09.2024.

12. So far as Dilip Saini (husband of the respondent/ complainant) is concerned, certainly he is not before this court; therefore, in such a situation, this Court directs the Trial Court to proceed with the Trial against Dilip Saini and so far as present applicants are concerned the proceeding of Complaint Case No. 63 of 2024 ‘Vineeta Saini vs. Dilip Saini and others’ shall remain stayed.

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