Dismissed

Gulzar and 3 Others v. State of U.P. and Another

Allahabad HC25 Oct 2021A482/4942/2021

Case brief

AI extract

What is this about?

The Court dismissed an application under Section 482 Cr.P.C. filed by accused applicants in a kidnapping complaint. Finding that the prosecutrix had specifically implicated the applicants, the Court held that the complaint was maintainable despite no charge-sheet having been filed against them in the concurrent state case due to the juvenile status of the accused therein. The Court ruled that the

What did the court decide?

Application dismissed; summoning order and complaint proceedings upheld.

Gulzar and 3 Others Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2021)

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Reserved on 04.08.2021 Delivered on 25.10.2021

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Court No. - 38

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Case :- APPLICATION U/S 482 No. - 4942 of 2021

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Applicant :- Gulzar And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohd. Khalil Counsel for Opposite Party :- G.A.,Sushil Kumar Shukla

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rajarshi Gupta, Advocate assisted by Mr. Mohd. Khalil, learned counsel for applicants, learned A.G.A. for State and Mr. Sushil Kumar Shukla, learned counsel representing opposite party-2.

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Perused the record.

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This application under Section 482 Cr.P.C. has been filed challenging summoning order dated 21.12.2020 passed by Additional District and Sessions Judge/Special Judge POCSO Act (Exclusive Court) Baghpat in Complaint Case No.06 of 2020 (Shahid Vs. Naboo and Others) under Sections- 323, 363 I.P.C. and Sections- 16/17 POCSO Act, Police Station- Binolli, District- Baghpat, as well as entire proceedings of above-mentioned complaint case.

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Record shows that an incident occurred on 16.11.2019 when Sumaiyya, minor daughter of complainant/opposite party-2 went missing. Accordingly, complainant/opposite party-2 lodged a prompt F.I.R. dated 16.11.2019 which was registered as Case Crime No.0337 of 2019, under Sections- 363, 366 I.P.C. and Sections- 7/8 POCSO Act, Police Station- Binolli, District- Baghpat. In the aforesaid F.I.R., one Mannan has been nominated as solitary named accused.

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Subsequent to afore-mentioned F.I.R., prosecutrix Sumaiyya was recovered. Thereafter, her statement under Section 161 Cr.P.C. was

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recorded which was followed by the statement of prosecutrix under Section 164 Cr.P.C. Prosecutrix was also medically examined. On the basis of above and statements of other witnesses recorded under Section 161 Cr.P.C., Investigating Officer opined to submit a charge-sheet against named accused, Mannan. Accordingly, Investigating Officer submitted charge-sheet dated 28.12.2019 whereby named accused Mannan has been charge-sheeted under Sections 363, 366 I.P.C. and Sections- 7/8 POCSO Act. Since charge-sheeted accused Mannan is a juvenile, therefore, charge-sheet was submitted before Juvenile Justice Board, Baghpat.

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After submission of above-noted charge-sheet dated 28.12.2019, complainant/opposite party-2 filed a complaint dated 15.01.2020. According to the allegations made in complaint, it is alleged by complainant/opposite party-2 that his minor daughter went missing on 16.11.2019. Subsequently, it was discovered that she has been kidnapped by one Mannan. Accordingly, an F.I.R. regarding above was lodged which was registered as Case Crime No.0337 of 2019, under Sections363, 366 I.P.C. and Sections- 7/8 POCSO Act, Police Station- Binolli, District- Baghpat. Thereafter, the prosecutrix was recovered on 18.11.2019. Prosecutrix in her statement under Section 164 Cr.P.C. has implicated Naboo, Babu, Hanif and Gulzar also in the crime in question, inasmuch as, they have abetted kidnapping of Sumaiyya. However, irrespective of above, Investigating Officer has not charge-sheeted above named accused. Consequently, complaint is being filed.

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Court concerned proceeded with complaint. Accordingly, statement of complainant and that of witnesses were recorded in terms of Sections 200/202 Cr.P.C. On the basis of above, court concerned recorded its prima-facie satisfaction regarding veracity of the allegations made in complaint. Resultantly, court below by means of order dated 21.12.2020 summoned the accused, i.e., applicants.

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Feeling aggrieved by summoning order dated 21.12.2020 passed by Additional District and Sessions Judge/Special Judge POCSO Act (Exclusive Court), Baghpat as well as entire proceedings of aforementioned complaint case, applicants who are accused and have been summoned in above-mentioned complaint case have now approached this Court by means of present application under Section 482 Cr.P.C.

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Mr. Rajarshi Gupta, Advocate assisted by Mr. Mohd. Khalil, learned counsel for applicants contends that impugned summoning order dated 21.12.2020 passed by court below is manifestly illegal and without jurisdiction. He submits that with regard to kidnapping of Sumaiyya, minor daughter of complainant/opposite party-2, an F.I.R. dated 16.11.2019 was lodged by opposite party-2. However, in the aforesaid F.I.R., applicants have not been nominated as named accused or otherwise. It is then submitted that if accordingly to complainant, complicity of present applicants is also established in the crime in question then in that eventuality, complainant ought to have filed a protest petition against charge-sheet dated 28.12.2019 before court concerned. However, instead of filing a protest petition against chargesheet dated 28.12.2019, complaint/opposite party-2 has filed a complaint in which applicants have been summoned. Since complaint filed by complainant/opposite party-2 is itself not maintainable, consequently, impugned summoning order passed by court below cannot be sustained and, therefore, liable to be quashed by this Court.

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Per contra, learned A.G.A. has opposed this application. Learned A.G.A. submits that there is no bar in proceeding with the state case now pending before Juvenile Justice Board as well as complaint case. Learned A.G.A. submits that after submission of a police report in terms of Section 173(2) Cr.P.C., court concerned has to take cognizance in terms of Section 190 Cr.P.C. It can also proceed with the protest petition as a complaint case provided no evidence exists on record. In the present

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case, however, prosecutrix in her statement under Section 164 Cr.P.C. has specifically implicated present applicants in the crime in question. Since proceedings of state case are pending before Juvenile Justice Board, inasmuch as, charge-sheeted accused Mannan is a juvenile, therefore, the protest petition could not have been filed by complainant/opposite party-2 before regular court as no proceedings arising out of aforesaid case crime number are pending there. Juvenile Justice Board has no jurisdiction to proceed against a person who is not a juvenile. Admittedly applicants are not juvenile. Furthermore, it is urged that applicants have not disputed the correctness of the statement of prosecutrix as recorded under Section 164 Cr.P.C. but have only disputed the forum of the proceedings. Since there is no statutory bar in proceeding against applicant nor there is inherent lack of jurisdiction with the Court to proceed against applicant, consequently, neither the summoning order nor the proceedings of above-mentioned complaint case are liable to be quashed by this Court. On the aforesaid premise, learned A.G.A. submits that no indulgence be granted in favour of applicants by this Court.

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Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of record, this Court finds that prosecutrix in her statement under Section 164 Cr.P.C. (copy of which is on record at page32 of the paper book) has specifically implicated present applicants in the crime in question. Court further finds that pursuant to F.I.R. dated 16.11.2019 which was lodged by first informant/opposite party-2 in respect of kidnapping of Sumaiyya, minor daughter of complainant/opposite party-2, police has submitted a police report in terms of Section 173(2) Cr.P.C. (Charge-sheet) only against named accused Mannan. Since Mannan is admittedly a juvenile, the chargesheeted has been submitted before Juvenile Justice Board. Consequently, no protest petition could be filed by complainant/opposite party-2 before

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regular court as no proceedings arising out of Case Crime No.0337 of 2019, under Sections- 363, 366 I.P.C. and Sections- 7/8 POCSO Act, Police Station- Binolli, District- Baghpat were pending before regular court. Apart from above, Court finds that the only grievance raised by applicants is that complainant/opposite party-2 ought to have filed a protest petition against Police Report. Therefore, what follows from above is that applicants are disputing the forum of their prosecution and not the prosecution itself.

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Court below has summoned applicants only after it recorded its prima-facie satisfaction regarding truthfulness of the allegation made in complaint in the light of statement of complainant and his witnesses as recorded under Sections 200/202 Cr.P.C. As such no illegality has been committed by court below in summoning applicants. At the stage of summoning of an accused in a complaint case, court is not required to hold a detailed enquiry as has been held by Apex Court in Nupur Talwar Vs. C.B.I. and Another, (2012) 11 SCC 465 , wherein following has been observed in paragraph 37:-

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" 37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo vs. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under :

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"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry underSection 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v. J.A. Finan, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued

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or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."

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Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicants. Submissions made at the Bar do not lead to the conclusion that complaint filed by complainant/opposite party-2 is not maintainable or there is inherent lack of jurisdiction with the Court to proceed with the complaint. At this stage only prime-facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 .

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In view of above, present application fails and is liable to be dismissed.

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It is, accordingly, dismissed.

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Order Date :- 25.10.2021 Saif

Gulzar and 3 Others v. State of U.P. and Another

Case brief

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Gulzar and 3 Others v. State of U.P. and Another

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