This single judge bench dismissed an application to quash a summoning order. It held that a prima facie case was made out against the applicants based on the complaint and eyewitnesses, and refused relief.
Prayer for quashing of summons order refused; directed surrender for bail consideration within 30 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 41
Case :- APPLICATION U/S 482 No. - 33341 of 2019
Applicant :- Radhey Shyam And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Satya Prakash Chaturvedi Counsel for Opposite Party :- G.A.,Sunil Kumar
Hon'ble Bachchoo Lal,J.
Short counter affidavit filed on behalf of the opp. party no. 2 is taken on record.
Heard learned counsel for the applicants, learned counsel for the opp. party no. 2, learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 3.8.2019 passed by learned Judicial Magistrate, Jewar, District Gautambudh Nagar in complaint case no. 270 of 2019, Kaushal Kumar Vs. Jai Kishan and others, under sections 323, 392, 504, 506 and 354 I.P.C. police station Jewar District Gautambudh Nagar.
It is contended by the learned counsel for the applicants that the applicants are innocent and have been falsely implicated in this case. There is no injury report on record to support the complaint version. In complaint the date of incident has been shown as 20.6.2019 while in the statement of complainant under section 200 Cr.P.C. the date of incident has been mention 19.6.2019. It has been further submitted that the prosecution story is not probable and believable. Prior to this complaint one application was also moved by the opp. party no. 2 to the District Magistrate concerned on 24.6.2019. On that application the police of police station concerned has submitted report that no such incident has taken place. It has been further submitted that there is dispute of land in between the parties. The applicant no. 1 has also filed a public interest litigation against the father of the opp. party no. 2. In counterblast the opp. party no. 2 has filed this false and frivolous complaint against the applicants. No offence is made out against the applicants. The present prosecution has been instituted only for the purpose of harassment.
Learned A.G.A. and learned counsel for the opp. party no. 2 argued that in complaint it has been mentioned that on 20.6.2019 at about 12.00 'o' clock in night the applicants entered into the house of the opp. party no. 2 taking lathi-danda
in their hands and asked for Rs. one lac which was withdrawn by the opp. party no. 2 on 19.6.2019 from bank to purchase shebuffaloes. It has been further mentioned that the applicants assaulted upon the opp. party no. 2 and his family members and torn cloths of the wife of the opp. party no. 2. In the statement under section 200 Cr.P.C. of the opp. party no. 2 it has come that he has withdrawn money on 19.6.2019 from bank and thereafter incident took place in the night at 12.00 'O' clock. In fact the incident has taken place on 20.6.2019. By the opp. party no. 2 merely not mentioning the date of incident in the statement under section 200 Cr.P.C., the summoning order cannot be set aside. The opp. party no. 2 in support of his complaint version has examined Jai Narain, Gopi and Anita who have supported the complaint version in their statements. Learned Magistrate after considering the entire evidence available on record and finding a prima facie case has summoned the applicants to face trial. There is no illegality or irregularity in the summoning order dated 3.8.2019 passed in the aforementioned case.
A perusal of record shows that in complaint the opp. party no. 2 has mentioned that on 19.6.2019 he withdrew Rs. one lac from the bank to purchase she buffaloes. On 20.6.2019 at about 12 'O' clock in the night the applicants entered into the house of the opp. party no. 2 and asked for money. The applicants assaulted upon the wife of the opp. party no. 2 and torn her cloths. The opp. party no. 2 in his statement under section 200 Cr.P.C. has supported the complaint version and also examined 3 witnesses namely Jai Narain, Gopi and Anita under section 202 Cr.P.C. who have supported the complaint version. Learned Magistrate after considering the entire evidence available on record and finding a prima facie case has summoned the applicants to face trial under sections 323, 392, 504, 506 and 354 I.P.C. I don't find any illegality or irregularity in the summoning order dated 3.8.2019. The Magistrate dealing with complaint at this stage has to see only prima facie case and it cannot be said that no prima facie case is made out against the applicants. The disputed defence of the accused cannot be considered at this stage.
Considering the facts and circumstances of the case, I don't find any ground to quash the summoning order dated 3.8.2019 passed in the aforementioned case, therefore, the prayer for quashing the same is hereby refused.
However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case
of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 30 days from today or till the applicants surrender and apply for bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 1.10.2019
Gss
2 issues framed by the court
Whether the summoning order passed in the complained case deserves to be quashed under Section 482 Cr.P.C.
Whether the discrepancy in dates mentioned in the complaint and the FIR is sufficient to set aside the summoning order.
Colour shows how this judgement treated each authority
Amrawati and another Vs. State of U.P.Applied¶13
2004 (57) ALR 290
Lal Kamlendra Pratap Singh Vs. State of U.P.Applied¶13
2009 (3) ADJ 322 (SC)
1 provisions across 1 enactments
Radhey Shyam And 3 Others
State Of U.P.
Kaushal Kumar
Bachchoo Lal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
