REKHA Vs. STATE OF U.P.AND ANOTHER

JUDGEMENT

(1.) SMT . Rekha des­cribing herself as wife of opposite party No. 2, Suraj Bhan, filed this revision against summoning order passed in complaint case filed by Suraj Bhan for offences under Sections 494,497, and 498 I.P.C. against Harsh Bardhan and I Smt. Rekha. After evidence under Sections 200 and 202 Cr. P.C. Magistrate summoned Harsh Bardhan for offences under Sections 494 and 498 I.P.C. and Smt. Rekha for offence under Sections 494 and 497 I.P.C. It was contended in the revision that the complaint was false and that Smt. Rekha is living with her parents. Whether prima facie case is made out from evidence recorded under Sections 200 and 202 Cr.P.C. is a matter of discretion of the Magistrate and need not be disturbed in revision. It cannot be forgotten that summoning order under Section 204 Cr.P.C. passed by the Magis­trate is an exparte order, and if after their appearance the accused can satisfy the Magistrate that the exparte order was wrong the Magistrate can discharge the accused under Section 245 (2) Cr.P.C. at any stage and even before any evidence. In my order dated 10.11.89 allowed revision­ists Smt. Rekha and Harsh Bardhan to appear before the Magistrate and claim discharge. I granted them opportunity to secure their release even on furnishing bonds with or without sureties under Section 88 Cr. P.C. I further allowed revisionists to file rejoinder affidavit. Evidently, rejoinder affidavit has not been filed. It is pointed out by the learned counsel for the opposite party No. 2 that the revision­ists have not appeared before the Magis­trate nor have sought exemption from personal attendance. It has been argued on behalf of the revisionists that at any rate no offence of adultery under Section 497 Cr.P.C. can be made out against wife. Hence summoning of the revisionists for offence under Sections 494 and 497 or Cr. P.C. is obviously without application of mind. It may be that the Magistrate did not pay attention to Section 497 I.P.C. But that cannot lead to the inference that he did not apply his mind to the evidence before him. If offence under Section 497 I.P.C. cannot be established against the wife no charge under Section 497 I.P.C. be framed against her. But that cannot be a ground for quashing the entire summon­ing order.

(2.) IN result, revision is rejected. Even now revisionists Smt. Rekha and Harsh Bardhan are permitted benefit of Sections 88 and 295 Cr.P.C. provided they properly appear before the Mgistrate and claim release on bonds and exemption from personal attendance. Revision Rejected.