Dismissed¶16

Santosh Kumar v. State of U.P.and Another

Allahabad HC13 May 2022A482/10941/2022

Case brief

AI extract

What is this about?

Allahabad High Court (Court No. 50), APPLICATION U/S 482 No. 10941 of 2022, Santosh Kumar v. State of U.P. and another (Rajpal), decided 13.5.2022 by Sadhna Rani (Thakur), J. Keywords: Section 482 Cr.P.C. inherent powers; quashing of revisional order dated 05.04.2022; protest petition converted to complaint; rejection under Section 203 Cr.P.C.; statements under Sections 200 and 202 Cr.P.C. not considered by Magistrate; additional incident dated 05.01.2019; alternative remedy before trial court; Bulandshahr; application dismissed.

What did the court decide?

The order dated 07.07.2018 was passed on an application under Section 156(3) Cr.P.C. on totally different facts, so the applicant's non-challenge of that order does not affect the present proceedings. ¶12

Santosh Kumar Vs State of U.P.and Another — Allahabad HC (2022) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the order dated 05.04.2022 passed by the revisional court (allowing Criminal Revision No. 11 of 2021) deserves to be quashed under Section 482 Cr.P.C. +1 more

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Court's answer

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Ratio / Principle

The facts of the applications under Section 156(3) Cr.P.C. dated 23.05.2017 and 14.01.2019 cannot be said to be the same altogether, since the latter additionally included the incident dated 05.01.2019.

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Key takeaways

The findings of the revisional court that the learned Magistrate did not consider the statement of opposite party no. 2 under Section 200 Cr.P.C. regarding the incident dated 05.01.2019, nor the statements of witnesses under Section 202 Cr.P.C., are 'out rightly correct'.ratio¶14
The legal position that an order is to be passed on the basis of the evidence on record was not followed by the learned Magistrate.ratio¶14

Detailed headnote1 paragraphs

Application under Section 482 Cr.P.C. for quashing the order dated 05.04.2022 of the Additional Sessions Judge, Court No. 1, Bulandshahr, allowing Criminal Revision No. 11 of 2021 and setting aside the Magistrate's order dated 05.01.2021 rejecting, under Section 203 Cr.P.C., the protest petition of opposite party no. 2 (Rajpal) registered as complaint: Held — (i) the order dated 07.07.2018 dismissing an earlier Section 156(3) application was on totally different facts, so its non-challenge did not affect these proceedings; (ii) the applications under Section 156(3) Cr.P.C. dated 23.05.2017 and 14.01.2019 were not on altogether the same facts, the latter adding the incident dated 05.01.2019; (iii) the revisional court correctly found that the Magistrate had neither considered the complainant's Section 200 Cr.P.C. statement on the 05.01.2019 incident nor discussed the witnesses' Section 202 Cr.P.C. statements, orders being required to rest on the evidence on record; (iv) the applicant could appear before the trial court and oppose the still-pending proceedings. No ground to quash; application dismissed. (Sadhna Rani (Thakur), J.; Order Date 13.5.2022)

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Court No. - 50

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Case :- APPLICATION U/S 482 No. - 10941 of 2022

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Applicant :- Santosh Kumar Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Dushyant Singh,M.C. Singh Counsel for Opposite Party :- G.A.,Krishna Dev Mishra

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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Heard learned counsel for the parties.

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This application has been filed by the applicant invoking inherent power of this Court under Section 482 Cr.P.C. for quashing the order dated 05.04.2022 passed by the Additional Sessions Judge, Court No. 1, Bulandshahr in Criminal Revision No. 11 of 2021 (Rajpal Vs. State of U.P. and others).

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As per facts of the case the opposite party no. 2 - Rajpal had filed an application under Section 156 (3) Cr.P.C. against the applicant on 23.05.2017, which was rejected under Section 203 Cr.P.C. on 10.10.2018. On the same facts adding incident dated 05.01.2019 an application under Section 156 (3) Cr.P.C. dated 14.01.2019 was again moved by the opposite party no. 2 wherein the facts mentioned in the application under Section 156 (3) Cr.P.C. dated 23.05.2017 were also included. This application dated 14.01.2019 under Section 156 (3) Cr.P.C. was allowed and the first information report was registered vide order dated 28.01.2019 of the concerned Court. After investigation final report was filed on 08.03.2019 and against this final report protest petition dated 04.10.2019 was filed by the opposite party no. 2, which was registered as a complaint vide order dated 04.11.2019. After recording the statement of opposite party no. 2 and the witnesses under Sections 200 and 202 Cr.P.C. respectively, this complaint was rejected under Section 203 Cr.P.C. on 05.01.2021. Against the order dated 05.01.2021 the opposite party no. 2 filed revision on 12.01.2021, which was allowed by the revisional court vide order dated 05.04.2022.

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By this application the order dated 05.04.2022 passed by the revisional court is prayed to be quashed.

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The ground taken is that the order of the revisional court is non speaking, non reasoned and is passed in a routine manner without applying its mind. This order is no order in the eyes of law, which is arbitrary. The revisional court illegally and wrongly allowed the revision, after rejecting the order of the

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learned Magistrate. The observation of the revisional court that the Judicial Magistrate has committed error in considering the evidence on record, is wrong, as the learned Magistrate has passed the order after considering the statement of opposite party no. 2 and his witnesses and the evidence available on the record, after applying its mind rightly and legally.

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It is also asserted that one Smt. Mithlesh had lodged an F.I.R. as Case Crime No. 419 of 2016 under Section 354 I.P.C. against the opposite party no. 2 - Rajpal, wherein the present applicant was the witness so in order to put pressure upon the applicant present F.I.R. was lodged against him. The present applicant and the opposite party no. 2 had contested the election of Gram Pradhan in the year 2016 in which the applicant got 781 votes and the opposite party no. 2 got only 4 votes. After loosing the aforesaid election of Gram Pradhan, the opposite party no. 2 lodged false F.I.R. against him. On 24.04.2018 the opposite party no. 2 had filed an application under Section 156 (3) Cr.P.C. against the applicant and other persons, which was dismissed by the learned Magistrate vide order dated 07.07.2018, which is not challenged by the opposite party no. 2. No offence under Sections 452, 354, 504, 506, 420, 467, 468 and 471 I.P.C. is made out against the applicant. The applicant has no antecedents of criminal history to his credit. He has never been prosecuted or convicted. Hence, the prayer to quash the order dated 05.04.2022 is made.

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From perusal of the above facts, it is clear that the order dated 07.07.2018 was passed by the concerned Magistrate on an application under Section 156 (3) Cr.P.C. on totally different facts so not challenging the order dated 07.07.2018 does not effect the present proceedings anyway. So far as the rejection order dated 10.10.2018 regarding application under Section 156 (3) Cr.P.C. dated 23.05.2017 is concerned, though, this application has been rejected under Section 203 Cr.P.C. but the order clearly shows that it was passed in absence of any evidence and also in absence of the opposite party no. 2. Admittedly, the application under Section 156 (3) Cr.P.C. dated 14.01.2019 is said to have been filed including one more incident dated 05.01.2019. Thus, the facts of both the applications dated 23.05.2017 and 14.01.2019 cannot be said to be the same altogether.

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In the present proceeding the order dated 05.04.2022 of the revisional court has been challenged on the ground that the findings of the revisional court that the learned Magistrate has not taken into consideration the statement under Sections 200 and 202 Cr.P.C. of the opposite party no. 2 and his witnesses. The order dated 05.01.2021 passed by the learned Magistrate is

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also on the record wherein the statement of opposite party no. 2 under Section 200 Cr.P.C. regarding incident dated 05.01.2019 has not been considered. At the same time, the statement of witnesses under Section 202 Cr.P.C. has also not been mentioned or discussed by the learned Magistrate concerned in his order, hence, the findings of the revisional court that the learned Magistrate has not considered the statement of opposite party no. 2 under Section 200 Cr.P.C. regarding incident dated 05.01.2019 and also the statement of witnesses under Section 202 Cr.P.C. is out rightly correct. The argument of learned counsel for the applicant in this regard is out of record. As the revisions are filed on the law point and it is legal position that the order is to be passed on the basis of evidence on record. This legal position does not seem to have been followed by the learned Magistrate. The trial court has not summoned the applicant yet. The matter is still pending before the Magistrate concerned to pass the requisite order on the basis of evidence on record. The applicant has proper remedy to appear before the trial court and oppose the proceeding there.

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Hence, in my opinion there is no ground to quash the impugned order in the proceeding of 482 Cr.P.C.

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The application is liable to the dismissed, hence, the same is dismissed .

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Order Date :- 13.5.2022 gp

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Digitally signed by GANESH PRAKASH Date: 2022.05.16 17:28:51 IST Reason: Location: High Court of Judicature at Allahabad

Santosh Kumar v. State of U.P.and Another

Case brief

What is this about?

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Santosh Kumar v. State of U.P.and Another

Case brief

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