YASHPAL KUMAR Vs. BHOLA NATH KHANNA

JUDGEMENT

(1.) By the present petition, the Petitioner seeks quashing of the order dated 18 th July, 2009 passed by the learned Additional Sessions Judge setting aside the order of the learned Metropolitan Magistrate dated 28 th March, 2009 whereby he had dismissed the complaint of Respondent No. 1 and refused to issue summons to the Petitioner herein for offence under Section 3 of the Dowry Prohibition Act.

(2.) Learned counsel for the Petitioner contends that the impugned order was passed by the learned Additional Sessions Judge in revision without issuing notice to the Petitioner and thus the same is liable to be set aside on account of the fact that the same is in violation of Section 401(2) Cr.P.C. and principles of natural justice. The order of the learned Additional Sessions Judge has gravely prejudiced the Petitioner. In this regard reliance is placed on Mohd. Afzal and others vs. Noor Nisha Begum and another, 1997 2 Crimes 493. It is further contended that the daughter of the Petitioner filed a complaint against Respondent No. 2 and his family members for offence under Sections 498A/406/34 IPC wherein it was stated that the Petitioner being the father of the girl had spent Rs. 8 lakhs in the marriage function etc. Respondent No. 1 on the basis of the said complaint of Petitioner?s daughter filed a complaint case before the learned Metropolitan Magistrate for summoning the Petitioner under Section 3 of the Dowry Prohibition Act, 1961 (in short the DP Act?). The learned Metropolitan Magistrate dismissed the said complaint, however, on a revision being filed by the Respondent, the learned Additional Sessions Judge set aside the order of the learned Metropolitan Magistrate and directed issuance of process against the Petitioner herein for offence punishable under Section 3, DP Act in view of the decision of this Court in Neera Singh vs. State (Govt. of NCT of Delhi), 2007 138 DLT 152. Learned counsel for the Petitioner contends that the judgment of this Court in Neera Singh is per incuriam as the same does not consider the provision of Section 7 of the DP Act. Reliance in this regard is placed on Pooja Saxena vs. State and another,2010 4 LRC 82 Delhi.

(3.) Learned counsel for Respondent No. 1 on the other hand contends that the complaint of Respondent No. 1 was dismissed at the stage of Section 203 Cr.P.C. and no summons had been issued to the Petitioner. Since the Petitioner had not been summoned, no notice was required to be issued to the Petitioner in the Revision Petition. Reliance in this regard is placed on Gurdeep Singh vs. State of Haryana, 2001 2 RCR(Cri) 178 and Rajesh Garg vs. Tata Tea Ltd. and another, Crl. Rev. P. 688/2003 decided by this Court on 18 th February, 2011. Reliance is also placed on Shivjee Singh vs. Nagendra Tiwary and others, 2010 3 RCR(Cri) 466 (SC) wherein their Lordships held that if violation of the procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word shall . It is further contended that the learned Additional Sessions Judge was justified in placing reliance on Neera Singh?s case because if Pooja Saxena s decision is to be relied upon then Section 3 of the DP Act will become nugatory. Further in the present case the complaint has been filed not against the girl, who was the victim, but against the father who was an accomplice and gave dowry.