Dismissed

Rajkumar and Others v. State of U.P. and Others

Allahabad HC8 Oct 2018CRLP/6240/2006

Case brief

AI extract

What is this about?

Single judge quashed the petitioners' petitions seeking to quash summoning and revisional orders regarding torture and death allegations. The court held prima facie cases existed and refused to interfere with the lower courts, while observing conditional bail applicability if petitioners surrender within two months.

What did the court decide?

Prayer to quash summoning and revisional orders refused; stay order vacated; two-month suspension of coercive action conditional on surrender.

Rajkumar and Others Vs State of U.P. and Others — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 41

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Case :- CRIMINAL MISC. WRIT PETITION No. - 6240 of 2006

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Petitioner :- Rajkumar And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Onkar Singh Counsel for Respondent :- Govt. Advocate

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Hon'ble Aniruddha Singh,J.

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Heard learned counsel for the petitioners and learned A.G.A. for the State.Perused the record.

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This writ petition has been preferred by Raj Kumar, Manoj Kumar, Priti and Smt Vedwati against State of U.P. and Mitra Pal with the prayer to quash the impugned order dated 20.10.2003 passed by 1st ACJM, Saharanpur whereby petitioners have been summoned under section 406 IPC and order dated 9.12.2005 passed by Additional Sessions Judge, Court No.2, Saharanpur in Criminal Revision No. 16 of 2004 (Raj Kumar & others vs. Stae of U.P. & others) whereby revision was dismissed and order dated 20.10.2003 has been confirmed.

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In the nutshell, facts of the case are that, one complaint was filed by opposite party No.2 against petitioners alleging that marriage of Pratibha was solemnized with Manoj but petitioners tortured her for demand of Rs.40,000/- and one motorcycle. On 6.5.2003 at 9 P.M. Manoj and his uncle left Pratibha in a bad condition near the house of complainant after taking her 'streedhan'. Later on she died on 7.5.2003.

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Learned counsel for the petitioners submitted that impugned orders are illegal, arbitrary, perverse and without evidence.There is no allegation against Raj Kumar and Smt Vedwati as such no demand was made by them.

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Learned AGA opposed and submitted that the impugned orders were passed after considering whole evidence on record and are just and legal.

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From perusal of record, it transpires that after recording statement of complainant under section 200 Cr.P.C. and witnesses namely, P.W.-1 Anil and P.W.-2 Surendra under section 202 Cr.P.C. who have supported the complaint case, impugned order dated 20.10.2003 summoning petitioners under section 406 IPC, was passed. Summoning order was rightly affirmed by the revisional Court.

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On the point of facts, both the Trial and revisional Court have

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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 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

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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, the Magistrate has to determine 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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Having regard to the facts and circumstances of the case and having considered the submissions made by the learned counsel for the parties, this Court is of the view that no case is made out to interfere with the impugned orders. There is no infirmity or illegality in the said order. The prayer made in the writ petition is refused. Stay order, if any stands vacated.

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However, it is observed that in case the petitioners surrender and apply for bail within two months from today, the same shall be considered and decided in view of the settled law laid down by this Court in the case of Amrawati and another Vs. State of U.P., reported in 2004 (57) ALR 290 and affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P., reported in 2009 (3) ADJ 322 (SC) . For a period of two months from today, no coercive action shall be taken against the petitioners.

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It is made clear that no further time shall be allowed to the petitioners to surrender before the court concerned.

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With the above observations, the writ petition stands disposed of.

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Order Date :- 8.10.2018 P.P.

Rajkumar and Others v. State of U.P. and Others

Case brief

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Rajkumar and Others v. State of U.P. and Others

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