Haripal and 2 Others Vs State of U.P. and Another

Court No. - 80 Case :- APPLICATION U/S 482 No. - 5603 of 2022

Applicant :- Haripal And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shashi Kumar Mishra Counsel for Opposite Party :- G.A.,Anil Kumar Pandey

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Hon'ble Rajeev Misra,J.

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Heard Mr. S.K. Mishra, learned counsel for applicants and learned A.G.A. for State.

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Challenge in this application is to the summoning order dated 24.9.2021, passed by Additional Civil Judge (J.D)/J.M. Court No. 26 Etah in Complaint Case No. 10947 of 2021 (RAmdas Vs. Haripal and Others) under sections 498A, 323 IPC and 3/4 D.P. Act Police Station Marhara, District Lalitpur as well as entire proceedings of aforementioned complaint case.

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Learned counsel for applicant contends that complainantopposite party-2 is the father of alleged wife of applicant-1. He further submits that no marriage of applicant-1 was solemnized with Poonam, daughter of opposite party-2. It is thus sought to be contended that concerned Magistrate has summoned the applicants who are husband, father-in-law and mother-ini-law of the daughter of complainant-opposite aprty-2. On the aforesaid premise, it is urged that present criminal proceedings have been initiated are on account of an ulterior motive, therefore, same are malicious and liable to be quashed. It is also contended that applicants are innocent. They have been falsely implicated in above mentioned complaint case. Allegations made in complaint are false and concocted.

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Per contra, the learned A.G.A. has opposed present application. He submits that after filing of application dated 9.2.2021, under section 156 (3) Cr.P.C., concerned Magistrate proceeded with same as a complaint. Accordingly, statements of complainant and his witnesses were recorded in terms of section 200 and 202 Cr.P.C. On the basis of above, learned Magistrate, recorded its prima facie satisfaction and accordingly summoned the applicants in aforementioned complaint case. He therefore, submits that no ground exists to quash the summoning order. He has then referred to paragraph 37 of the judgement in Nupur Talwar Vs. Central Bureau of Investigation and Another, (2012) 11 SCC 465. For ready reference same is reproduced herein under:

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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

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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 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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When confronted with above, learned counsel for applicant could not over come the same.

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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 applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court. 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, State of Haryana v.

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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 :- 6.7.2022/Arshad

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Digitally signed by ARSHAD MAHMOOD Date: 2022.07.07 18:20:30 IST Reason: Location: High Court of Judicature at Allahabad

Haripal and 2 Others v. State of U.P. and Another

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Haripal and 2 Others v. State of U.P. and Another

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