Dismissed

Bhagwan Sahai and Others v. State of U.P. and Another

Allahabad HC26 Sept 2018CRLP/1047/2005

Case brief

AI extract

What is this about?

Bearer of criminal miscellaneous writ petition preferring against summoning order and revision disposal in property dispute case. Court held impugned orders were plausible and no interference called for without abuse of process.

What did the court decide?

Writ petition dismissed as no abuse of process. Interim stay on coercive action for 45 days. Bail application to be decided by court below within specified time.

Bhagwan Sahai and Others Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 41

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Case :- CRIMINAL MISC. WRIT PETITION No. - 1047 of 2005

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Petitioner :- Bhagwan Sahai And Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- B.P. Mishra Counsel for Respondent :- Govt. Advocate,Balram Gupta

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Hon'ble Aniruddha Singh,J.

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Heard Sri B.P. Mishra, learned counsel for the petitioners and learned AGA. Perused the record.

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This petition has been preferred by Bhagwan Sahai, Mahaveer, Nandeswar @ Munna, Kallu and Babban against State of U.P. and Onkar Nath challenging order dated 22.3.2004 passed by Judicial Magistrate, Havali whereby petitioners have been summoned under Section 147, 323, 452, 506 IPC and order dated 30.11.2004 passed by Additional Sessions Judge/Special Judge(EC Act), Farrukhabd in Criminal Revision No. 83 of 2004(Bhagwan Sahai & others vs. State of U.P.) whereby revision was dismissed against that order.

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From perusal of record, it transpires that one case was registered as Crime No. 135-C of 2003 under section 147, 452, 323, 504,506 IPC. In that case, Final Report was submitted. Protest petition was filed and that was registered as Complainant case. Statement of complainant Bhagwan Sahai was record under section 200 Cr.P.C. and statement of P.W.-1 Ram Vilas, P.W.-2 Kehri Lal and P.W.-3 Om Hari Dubey were recorded under section 202 Cr.P.C. After considering injury report date 21.2.2003 and the statements of witnesses as well as complainant, petitioners were summoned.

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Learned counsel for the petitioners submitted that civil suit between the parties regarding property is pending before the Revenue Court and due to that dispute false case has been registered and summoning order was passed after rejecting Final Report. From perusal of injury report, it transpires that injury report is also in support of prosecution case.

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On the point of facts, both the Trial and revisional Court have given concurrent finding and view taken by both the Courts is plausible view. Hence no interference is called for in the impugned summoning order. Section 203 Cr.P.C. and 204 Cr.P.C. are quoted hereunder for ready reference.

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"Section 203 Cr.P.C. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant

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and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

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"Section 204 Cr.P.C. Issue of process.

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(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

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(a) a summons- case, he shall issue his summons for the attendance of the accused, or

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(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

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(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.

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(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.

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(4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

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(5) Nothing in this section shall be deemed to affect the provisions of section 87."

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According to Section 203 Cr.P.C., Magistrate can dismiss the complaint after recording statement of complainant and witnesses and result of inquiry or investigation. Magistrate has power under section 204 Cr.P.C. to issue summon or warrant.

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Moreover, in the case of Jancy Nelson D'Souza v. Nel D' Souza, 2004 Crl 1690(1692)(Bom) , Bombay High Court has held that at the time of taking cognizance of the complaint presented before a Magistrate, the Magistrate has to deal with the said complaint in view of the allegations made in the complaint itself and he has to find out whether, prima facie offence has been spelt out. At that stage it is not necessary for him to make a detailed enquiry touching niceties.

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In the case of Jia Lal Sharma vs. State , 1982 Crl.J. 1913(Del) the Delhi High Court has held that for the issue of process against the accused it has to be only seen whether prima facie case has been made out.

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In the case of Parsoon Kumar Srivastava vs. State of U.P., 1999 Crl. J 3375( All) , this Court has held that where allegations made in the complaint prima facie disclose alleged offences, summoning order is justified.

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In the case of Nupur Talwar vs. Central Bureau of Investigation, AIR 2012 SC 1921 , Apex Court has held that at the time of issuing process, all that the Magistrate has to determine is whether the material placed before it is sufficient for proceeding against the accused. The term 'sufficient to proceed' is different and distinct from the terms 'sufficient to prove and establish guilt'. At the stage of issuing process, the Magistrate is not required to weigh the evidence meticulously as if it was the trial Court nor is he required to scrutinize the evidence by the same standard by which the trial Court scrutinizes the evidence at the stage of framing charge.

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In the case of Anil Saran vs. State of Bihar, AIR 1996 SC 204 , the Court has held that the defence open to the accused is not to be seen at the time of issuance of process.

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In this case, summoning order has been passed in accordance with law. The petitioners have opportunity to place evidence before the Trial Court at appropriate stage.

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The prayer for quashing the same is refused as I do not see any abuse of the Court's process either.

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However, it is provided that if the bail has not been obtained as yet, the petitioners may appear before the court below and apply for bail within 45 days from today. The court below shall make an endeavour to decide the bail application of the applicant in the light of the judgement of this court in the case of Brahm Singh and Ors. Vs. State of U.P. and Others, reported in 2016 (7) ADJ 151.

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As an interim measure, it is provided that for a period of 45 days from today or till the petitioners appear before the court below, whichever is earlier, no coercive action shall be taken against them.

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With the above observations, this writ petition stands disposed off.

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Order Date :- 26.9.2018/P.P.

Bhagwan Sahai and Others v. State of U.P. and Another

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Bhagwan Sahai and Others v. State of U.P. and Another

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