SHIV KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) THE facts giving rise to this writ petition are that one Smt. Neelam Rani filed a criminal complaint being Criminal Case No.2754 of 1992 (Smt. Neelam Rat v. Shiv Kumar and others) under Section 406.I.P.C. on 14.9.1992 alleging therein that she was married with Shiv Kumar, the petitioner herein, on 29.11.1989 as per Hindu rites and ceremonies at Meerut where she was residing with her parents. After marriage she went to Delhi where her husband was residing, but on account of the impotency of the husband she had to obtain divorce by filing a divorce petition at Meerut, where the marriage had taken place. While filing the complaint she also mentioned the list of articles given as Stridhan at the time of marriage. THE further allegations in the complaint is that she sent a notice dated 30.7.1992 but the service of the notice was avoided by the husband-petitioner. Again on 11.8.1992 a notice of demand was sent. On 17.8.1992 a notice was sent under postal certificate. THE reply of the notice was received from the Advocate of her husband on 24.8.1992 but her Stridhan was not returned to her. On these allegations it was requested that action under Section 406, I.P.C. be taken against the accused person mentioned in this complaint for criminal breach of trust.

(2.) AFTER recording the statement of the complainant under Section 200, Cr. P.C. and also recording the statement under Section 202, Cr. P.C. the Magistrate concerned summoned the accused persons under Section 406, I.P.C.

(3.) THE learned counsel for the petitioner submits that the action of the Magistrate in summoning the witness, Mohan Lai under Section 311, Cr. P.C. at that stage when the court had not taken cognizance under Section 204, Cr. P.C. is illegal. Summoning a witness for the purposes of grabing jurisdiction is contrary to the provisions of law. THE provisions of Section 311. Cr. P.C. can only be used for just decision of a case and not for the help of the court for grabing jurisdiction. According to the learned counsel the provisions of Section 311, Cr. P.C. cannot be exercised before charge. He relied upon several decisions reported in AIR 1968 SC 178 ; AIR 1965 SC 328. According to him the provisions of Section 311, Cr. P.C. cannot be exercised to fill up the lacuna in the prosecution case and on this point he has put reliance on a decision reported in 1969 Cr LJ 123. According to the learned counsel under Section 311, Cr. P.C. the accused has right of rebuttal and on this point he has relied upon a decision reported in AIR 1978 SC 1558.