IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1172 of 2007 MADHVI DEVI WIFE OF RAMU RAI, RESIDENT OF VILLAGE MAHAVIR MARG, P.S. KISHANGANJ, KISHANGANJ. …PETITIONER Versus 1. STATE OF BIHAR 2. RAMU RAI, SON OF LATE BHANU RAI, RESIDENT OF VILLAGE DUMARIA, P.S. KISHANGANJ, DISTRICT KISHANGANJ. OPPOSITE PARTIES For the petitioner : Mr. Pankaj Kr. Sinha & : Mr. Diwakar Sinha, Advocates For O.P.No.2 :Mr. Sourendra Pandey For the State : Mr.Jharkhandi Upadhyay,APP ----------- 4. 22.07.2010 Petitioner is the informant of the case which gave rise to Trial No.1102/07 of the Court of learned Judicial Magistrate, 1st, Class Kishanganj. He is aggrieved by the judgment and order dated 20.06.2007, whereby opposite party no.2 herein was acquitted of diverse charge(s) including one framed under section 498A of the Penal Code. Background facts giving rise to the present application may be briefly indicated. Petitioner lodged an FIR alleging therein, inter alia, that she was married with o.p.no.2 on 20.04.1995. Several gifts and cash amount was/were given in dowry. She was taken to Delhi where the husband was allegedly working in a shipping company. She stayed there for few months and on the instigation of one Surendra Kaur, another accused person, the husband started exerting pressure for payment of sum of Rs. 50,000/- as dowry. On her refusal, she was tortured physically and mentally. It was further alleged that the husband had established illicit relationship with - 2 - Surendra Kaur which was protested whereafter she was physically assaulted. The matter was reported to the parents whereafter certain amount was also paid. On 22.6.1996, she was taken back to Kishanganj by her brother and o.p.no.2 subsequently joined them at Kishanganj. A kind of settlement was arrived at but still thereafter the husband continued to demand dowry and torture her. Finally, she was ousted from the matrimonial home. The I. O., on conclusion of investigation, submitted charge-sheet under sections 341,323 and 498A IPC against o.p.no.2 leading to trial. At the trial, six witnesses were examined. Petitioner as well as her father did not appear as witnesses. Learned trial court, on a consideration of materials placed on record, found that prosecution case has not been proved beyond shadow of all reasonable doubts, and accordingly the accused (o.p.no.2) was acquitted of charge(s). Learned counsel for the petitioner while assailing the sustainability of the order, submits that no notice/summons was issued on her as a result whereof she was prevented from appearing as a witness at the trial. This has resulted in manifest illegality resulting in miscarriage of justice. He relies on a judgment of the Supreme Court rendered in the case of Bansi Lal & Ors. Vs. Laxman Singh (1986 CRI.L.J.1603 paragraph 9 = AIR 1986 Supreme Court Cases 1721). Learned counsel appearing on behalf of o.p.no.2, on the other hand, states that the entire order-sheet of the trial court would show that several attempts were made by the court below to ensure - 3 - attendance of P.Ws. at the trial including the petitioner(informant) and only thereafter prosecution case was closed and judgment was rendered on the basis of evidence of other prosecution witnesses. It is his contention that trial in the present case consumed more than seven years. The charges were framed on 5.1.2000. The last witness being P.W.6 was examined on 3.4.2007 whereafter learned trial court closed the prosecution case adjourning the matter for 30.05.2007 enabling the prosecution to produce other/remaining witnesses. On 30.05.2007 prosecution case was closed observing that in spite of issuance of summons and bailable warrants of arrest the remaining witnesses have not been produced by the prosecution and, as such, it was not deemed expedient to grant any further opportunity. It is thus contended that the order impugned passed by learned trial court does not warrant interference. Learned APP, on the other hand, fully supported the impugned judgment. I have heard the submissions advanced on behalf of the parties and perused the materials available on record. Petitioner is igniter of the case but the State is prosecutor. The order-sheet of learned trial court is available on record. It appears therefrom that on 05.01.2000, charges were framed against the accused (o.p.no.2) and summons was directed to be issued which was received by the State counsel. On 19.07.2007, P.Ws.1 and 2 appeared for their examination. They were examined. The matter was taken up again on 22.02.2001 when learned trial court having found that other witnesses are not - 4 - turning up, issued non-bailable warrant of arrest. The order-sheet indicates that it was issued by the office. On 18.07.2001, the court directed for issuance of Dasti summons on the non-appearing witnesses. The marginal notes indicate that it was duly received. The matter thereafter remained pending for production of witnesses. On 3.4.2002 trial court again directed for issuance of bailable warrant of arrest for production of remaining witness(s). All these steps could bring P.W.3 for his deposition on 16.05.2002. He was examined on that day. On the next date, i.e., 15.07.2002 the said witness was cross- examined and the remaining part of his cross-examination was deferred. It appears that P.W.3 thereafter evaded appearance for his cross-examination which prompted the trial court to again issue bailable warrant of arrest against him by order dated 28.11.2002. Consequently, P.W.2 re-appeared on 05.02.2003 and his cross- examination concluded on 02.06.2003. Considering the lackadaisical attitude of the prosecution and the age of the trial, learned trial court by order dated 18.09.2003 granted last opportunity to the prosecution to produce the remaining witness(s). The matter was adjourned for 18.11.2003 when the trial court considering the request made by APP granted another opportunity to produce witnesses. The matter was again taken up on 17.12.2003 when on the request of learned APP one more opportunity was given to the prosecution to produce and examine witness. The matter thereafter was taken up on 16.02.2004 and 16.03.2004. Order-sheet indicates that the matter thereafter remained pending in the said court for about two years. On 8.11.2006 P.W.5 - 5 - was produced on behalf of prosecution. He was examined on 03.04.2007. The matter was thereafter adjourned to be taken up on 30.05.2007 when finally, as indicated above, prosecution case was closed. Learned counsel for the petitioner states that witnesses might have been examined in the case but so far as the informant is concerned, there was no notice/summons served on her, and as such, she was denied the opportunity to appear and examine herself as a witness. On the contrary, the submission of learned counsel on behalf of o.p.no.2 is that in view of facts appearing from the record more than sufficient opportunity was granted to the prosecution to examine witnesses. Section 62(1) and 69(1) of the Code of Criminal Procedure prescribe as under: “62 (1) Every summons shall be served by a police officer or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. 69 (1) Notwithstanding anything contained in the preceding sections of this Chapter, a court, issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.” It is thus seen that the court acting in its discretion can get the same issued and served by the counsel representing the state, i.e. APP. There is no allegation against APP in the present case. At this stage, another submission of learned counsel for - 6 - o.p.no.2 requires consideration. Referring to deposition of P.W.1, Sharda Prasad, it is submitted that this witness is on record stating in clear terms that the informant did not go to the husband’s house after marriage. She remained at her parents home althrough even after marriage. The statement hits at the root of the prosecution case. From the discussion made hereinabove, it is seen that the matter remained pending trial for about seven years. Learned trial court gave more than the required indulgence to the prosecution, i.e. the State to produce witnesses. The attitude of the prosecution in the present case can further be seen from the conduct of one of the P.Ws., namely, P.W.3 who had appeared for his examination and thereafter defaulted for about ten months in his re-appearance for re-examination. Ultimately he appeared but after issuance of bailable warrant of arrest against him. The impugned order of acquittal was passed on 20.6.2007. The informant has lodged the present case within time. P.W.2 (Tilak Lal) examined in this case on behalf of the prosecution made statement in the court which sharply contradicts the case made out in FIR lodged by the petitioner. On a consideration of the facts of the case, it appears to this Court that the informant had the knowledge of the case and the fact that witnesses were being produced on behalf of the prosecution at the trial. She intentionally waited on the wings and did not produce herself as a witness in the present case. Learned trial court, on the other hand made all needful efforts by giving more than adequate indulgence(s) to the prosecution to produce evidence. In fact, trial - 7 - court waited for more than four years for production and examination of all prosecution witnesses. The informant immediately after the order of acquittal filed the present case within time. All these aspects of the matter indicate that she had knowledge of the trial and did not present herself for her examination thereat. The trial court issued summons/Dasti summons which was/were received by learned APP and, as such, it can be seen that the trial court acted in terms of section 62(1) of the Cr.P.C. For the reasons noted above, this Court is of the view that the order does not suffer from any manifest illegality meriting interference. The application is accordingly dismissed. hr ( Kishore K. Mandal )