Dismissed

Deen Dayal Sharma v. State of U.P. and Another

Allahabad HC27 Oct 2018CRLR/687/2010

Case brief

AI extract

What is this about?

Criminal revision filed by a Sub-Inspector challenging warrant orders. The court dismissed the revision, holding that theMagistrate correctly issued process under Sections 203 and 204 Cr.P.C. as the complaint prima facie disclosed offences, and it is not the detail's duty to weigh evidence at that stage.

What did the court decide?

The criminal revision is dismissed. Any interim order is vacated.

Deen Dayal Sharma Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 41

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Case :- CRIMINAL REVISION No. - 687 of 2010

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Revisionist :- Deen Dayal Sharma Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Ashok Kumar Srivastava Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Aniruddha Singh,J.

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None is present for the revisionist. Heard learned AGA and perused the record. The revision is being decided on merit.

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This criminal revision has been preferred by Deen Dayal Sharma against State of U.P. and Divisional Forest Officer, Sonbhadra assailing orders dated 12.11.2009 and 12.1.2010 passed by Additional Chief Judicial Magistrate, Sonbhadra in Case No. 2453 of 2009 (State vs. Chhotai @ Niktoo and others) thereby after taking cognizance accused revisionist alongwith others have been summoned under section 29/33 & 41/42 Indian Forest Act and under Section 353 IPC, Police Station Robertsganj, District Sonbhadra and later on bailable warrant has been issued on 12.1.2010.

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Revisionists submitted in memo of revision that revisionist being Sub-Inspector, Railway Force got the woods of Eucalyptus trees kept within the railway campus, there is no allegation that revisionist has kept the alleged woods at his residence and those trees do not belong to Forest Department. Hence impugned orders, complaint and entire proceedings are nothing but abuse of process of the Court.

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Learned AGA submitted that there is no illegality or infirmity in the impugned orders.

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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

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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 as the case may be.

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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

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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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The revisionist has opportunity to place evidence before the Trial Court at appropriate stage. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned orders.

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The revision lacks merit and is hereby dismissed. Interim order, if any, stands vacated.

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

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Order Date :- 27.10.2018 P.P.

Deen Dayal Sharma v. State of U.P. and Another

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Deen Dayal Sharma v. State of U.P. and Another

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