Dismissed

Kamal and Tohers v. State of U.P. and Another

Allahabad HC24 Oct 2018CRLR/4162/2006

Case brief

AI extract

What is this about?

This criminal revision challenged a summoning order against seven revisionists. The court held that the impugned order was legal and justified as sufficient grounds for proceeding existed based on the complaint. While dismissing the revision, the court directed no coercive action against the application if they surrender with a bail plea within one month.

What did the court decide?

No coercive action to be taken against the applicants if they surrender and apply for bail within one month from the date of the order.

Kamal and Tohers Vs State of U.P. and Another — Writ and Judicial Review | Allahabad HC (2018)

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Court No. - 41

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Case :- CRIMINAL REVISION No. - 4162 of 2006

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Revisionist :- Kamal & others Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- S.K. Sharma Counsel for Opposite Party :- Govt. Advocate,Janardan Yadav,Sudhakar Singh

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Hon'ble Aniruddha Singh,J.

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Heard Sri S.K.Sharma, learned counsel for the revisionists and Sri Sudhakar Singh, learned counsel for the opposite party and learned A.G.A. and perused the record.

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This criminal revision has been preferred by the revisionists Kamal, Har Kishore, Harish Chandra, Radhey Shyam, Ram Gulam, Raghuveer and Dinesh against the order dated 06.06.2006 passed in Complaint Case No.181 of 2006 (Jai Hind vs. Kamal and others) passed by Additional Chief Judicial Magistrate, Rampur, Court No.1, Chandauli, whereby Kamal, Har Kishore, Harish Chandra, Radhey Shyam, Ram Gulam, Raghuveer and Dinesh were summoned under Sections 323, 427, 506 I.P.C.

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Learned counsel for the revisionists has submitted that this is a counter blast case and revisionist nos. 1 to 7 have lodged F.I.R against the complainant and later on this Complaint Case No.181 of 2006 was filed under Sections 323, 427, 506 I.P.C. Complaint was filed after 65 days of the incident and order passed court concerned is illegal, arbitrary and against law and fact.

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Sri Sudhakar Singh, learned counsel for the complainant has submitted that order passed by the court below is just and proper.

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On the other hand, learned A.G.A has supported the impugned order and contended that the impugned order is just and legal and there is no illegality or infirmity and the present criminal revision is bereft of merits and is liable to be dismissed.

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From perusal of record this fact is admitted. The incident was taken place on 03.06.2006 as stated by the learned counsel for the revisionists. From perusal of record, it also transpires that revisionists were summoned on the basis of statement of the complainant under section 200 Cr.P.C. and statement of P.W.-1 Saroj and P.W.-2 Narendra under Section 202 Cr.P.C.

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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.

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Revisionists were summoned under section 204 Cr.P.C. It is relevant to quote here Sections 203 and 204 Cr.P.C.

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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 subsection (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 process- fees 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

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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 revision is dismissed.

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However, it is observed that in case the revisionists surrender and apply for bail within one month 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 one month from today, no coercive action shall be taken against the applicant.

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Copy of this order be transmitted to the Court concerned immediately.

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Order Date :- 24.10.2018 SKD

Kamal and Tohers v. State of U.P. and Another

Case brief

What is this about?

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Kamal and Tohers v. State of U.P. and Another

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