Allowed

Rajesh Kamalia and Another v. State of U.P. and Another

Allahabad HC16 Apr 2018CRLR/2732/2016

Case brief

AI extract

What is this about?

The High Court allowed a criminal revision against an order summoning applicants for offences under IPC and POCSO. It found the lower court erred by not examining material witnesses under Section 202 Cr.P.C. despite the offences being triable exclusively by the Sessions Court. The impugned order was set aside.

What did the court decide?

Order passed by learned Magistrate set aside; Trial court directed to summon and examine all material witnesses expeditiously.

Rajesh Kamalia and Another Vs State of… — Contract and Commercial Disputes | Allahabad HC (2018)

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Court No. - 28

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Case :- CRIMINAL REVISION No. - 2732 of 2016

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Revisionist :- Rajesh Kamalia & Another Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Rakesh Kumar Gupta Counsel for Opposite Party :- G.A.,Anurag Upadhyaya

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Hon'ble Umesh Chandra Tripathi,J.

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Heard Sri Rakesh Kumar Gupta, learned counsel for the revisionists, Sri Anurag Upadhyay, learned counsel for opposite party no. 2 and Sri L.D. Rajbhar, learned A.G.A. for the State of U.P. (opposite party no. 1).

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This revision has been preferred against the order dated 18.05.2016 passed by Additional Sessions Judge/Special Judge, Court No. 3, Maharajganj in Complaint Case No. 103 of 2016 (Bankelal v. Abdul Rehman @ Sajid and others), Police Station - Purandarpur, District - Maharajganj whereby applicants - Rajesh Kamalia and Sunil Kamalia and one other Abdul Rehman have been summoned for the offence punishable under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act.

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Learned counsel for the revisionists contended that offence is triable by court of sessions, even then learned trial court had not examined all the witnesses under Section 202 Cr.P.C., which is against the provision of Section 202 Cr.P.C and the impugned order is liable to be set aside.

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Learned counsel for opposite party no. 2 and learned A.G.A. contended that there is no illegality in the impugned order passed by the court below. He has filed report of C.M.O., Maharajganj dated 30.10.2014 before the trial court. According to that report, the prosecutrix was minor. Against the same order, the application of co-accused Abdul Rehman under Section 482 Cr.P.C. has been rejected by this Court vide order dated 23.08.2016 passed in Application under Section 482 No. - 23164 of 2016 (Abdurrahaman @ Sazid v. State of U.P. and Another).

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Section 202 Cr.P.C. reads as follows :

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202. Postponement of issue of process.

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(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,--

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(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

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(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

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(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

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(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

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Offence against the applicants is triable by court of sessions. From the perusal of impugned order, it is evident that there was allegation of abortion of the prosecutrix by the applicants. Termination of pregnancy of the prosecutrix and medical evidence about age are material evidence of this case. As per proviso of Section 202 (2) Cr.P.C., it was the duty of the court to call upon all the material witnesses and examine them on oath. Learned trial court had not called upon the witnesses of the aforesaid fact. Accordingly, the impugned order is not sustainable.

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Application under Section 482 Cr.P.C. rejected by this Court is not a ground for rejection of this revision. Illegality of the impugned order was not considered by the court in Application under Section 482 Cr.P.C.

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In view of above, order passed by learned Magistrate is set aside and the revision is allowed .

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Trial court is directed to summon and examine all the material witnesses expeditiously, preferably within six months, before passing order under Section 203 Cr.P.C. or Section 204 Cr.P.C.

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Order Date :- 16.4.2018 I. Batabyal

Rajesh Kamalia and Another v. State of U.P. and Another

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Rajesh Kamalia and Another v. State of U.P. and Another

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