Dismissed

Priya Verma v. State of U.P. Thru. Addl. Prin. Secy. Home Lko. and 5 Others

Allahabad HC6 Jul 2023/692/2023

Case brief

AI extract

What is this about?

This revision petition challenged an order dismissing an application to enhance criminal charges and summon additional accused. The High Court upheld the trial court's decision, ruling that the stage of taking cognizance requires only prima facie evidence, and the trial court cannot examine defence veracity or order summons unless the offence is established.

What did the court decide?

The criminal revision petition was dismissed; liberty granted to file an application for enhancement of sections at the stage of charge.

Priya Verma Vs State of U.P. Thru. Addl… — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:43331

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Court No. - 29

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Case :- CRIMINAL REVISION No. - 692 of 2023

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Revisionist :- Priya Verma

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Opposite Party :- State Of U.P. Thru. Addl. Prin. Secy. Home Lko. And 5 Others Counsel for Revisionist :- Surya Prakash Singh,Rajendra Pratap Singh Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Renu Agarwal,J.

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Heard learned counsel for the revisionist and learned AGA for the State.

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Present criminal revision under Section 397/401 Cr.P.C. has been filed against the judgment and order dated 04.04.2023 passed by Principal Judge, Civil Judge Junior Division/J.M. Muhmudabad, District Sitapur in Criminal Case No. 3193 of 2022, State Government Vs. Sudhir Kumar and Others.

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It is submitted that the land of revisionist was mutated in the name of opposite party No. 2 vide order dated 08.04.2021. When this fact came in the knowledge of revisionist, without delay, lodged the F.I.R. against the opposite parties No. 2 to 6 under Section 419/420/467/468/504/506 I.P.C., Police Station Mahmudabad, District Sitapur on 01.07.2021. The investigating Officer dropped the Section 419/420/467/468 and also dropped the name of opposite party No. 5 and 6 and filed charge-sheet against the opposite parties No. 2 to 4 under Section 504/506

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I.P.C. It is further submitted that the I.O. was not in consonance with the gravity of offence made out on the basis of material produced during the investigation. The revisionist is living with her husband and no evidence has been collected by the I.O. which goes the route of the case. It is next submitted that no effort has been made to investigate the matter regarding fake signature, old photograph and document has not been verified neither taking the opinion of the finger print expert. The revisionist moved an application before the Tehsildar Court, Muhmudabad and she has never promised the opposite party No. 2 to transfer the said property after her marriage. It is further submitted that the order order of summoning is defective and the trial court may be directed to include section 419/420/467/468 I.P.C. and also O.P. No. 5 and 6 be included as accused.

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Learned AGA submitted that the evidence on record can be taken cognizance of by the Magistrate and Judicial Magistrate rightly passed the order.

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The present application is moved in form of revision to check the illegality and veracity of the impugned judgment and order. There is no need to issue summon to opposite party no. 2 to 6.

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Application under Section 190 and 190(1) Cr.P.C. was moved on the ground that the I.O. was pressurizing the

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revisionist for compromise and he had moved an application to S.S.P., Sitapur on 31.03.2022. The I.O., without investigating properly, on the basis of concocted stories dropped the chargesheet under Section 419, 420, 467, 468 I.P.C. It is also mentioned in the application dated 16.11.2022 that the revisionist lodged the F.I.R. without any pressure from her inlaws, therefore, the application dated 16.11.2022 was moved just to add Section 419, 420, 467, 468 and 471 I.P.C.

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The said application was rejected vide order dated 04.04.2023 on the ground that at the stage of taking cognizance and no paper other than the prosecution evidence can be taken into consideration. The proceedings of the mutation application filed by the opposite party No. 2 which was registered as case No. 440 of 2021 was conducted by officer of competent jurisdiction, therefore, prima facie, no conspiracy is formed. Learned Trial Court mentioned in the order that on the basis of statement of complainant only, sections cannot be enhanced at the state of 190 Cr.P.C.

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The question which requires consideration is thus whether the Magistrate would have power to summon any person as an additional accused while taking cognizance under Section 190(1)(b) Cr.P.C. Hon'ble Supreme Court in Hareram Satpathy vs Tikaram Agar W Ala And 3 Others reported in AIR 1978 SC 1568 and in case of Raghubans Dubey vs State

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Of Bihar reported in AIR 1967 SC 1167 held that Magistrate has not only power to issue process in exercise of its jurisdiction under Section 190 Cr.P.C. bu the revisional court including the High Court is also very limited. In this regard, only a reference can be made to the decision of the High Court. In the case of Chandra Deo Singh vs Prokash Chandra Bose & Anr reported in AIR 1963 SC 1430 where again it is held that at the time of taking a decision whether a process is to be issued against the accused or not, what the Magistrate has to see is whether there is evidence in support of allegation of a complaint so as to justify the issue of process and commencement of proceedings against the accused and no whether the evidence is sufficient to warrant his conviction. In Hareram's case (supra) the Supreme Court has held that under Section 190 of Cr.P.C., Magistrate take cognizance of offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offender at that stage as to who actually offencer is involved in the case might have been, as to be decided by the Magistrate after taking cognizance of the offence. Hon'ble Apex Court in India Carat Pvt. Ltd vs State Of Karnataka & Anr reported in AIR 1989 SC 885 has held that if further investigation is necessary, Court may order to the effect under Section 156(3) Cr.P.C. and if ultimately the Magistrate was of the opinion that the fact set out by the police

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report constitute an offence, he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report.

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From the perusal of the record, it is apparent that during the investigation, the investigating officer did not find any prima facie case under Section 419, 420, 467, 468 I.P.C. The application which was moved by revisionist before the S.S.P. to enhance the Sections 419, 420, 467, 468 and 471 is annexed as Annexure No. 8 to the revision. It is also contended that revisionist moved an application to Naib Tehsildaar also to set aside the ex-parte order dated 08.04.2021. The application moved to Naib Tehsildaar is annexed as Annexure No. 4 to the Revision. It is contended that Investigating Officer did not consider the application which he produced before the I.O. filed by revisionst. It transpires from this application that the proceedings of case No. 440 of 2021 under Section 34 L.R. Act Village-Korar, Policse Station-Mehmoodpur, District-Sitapur was decided against the revisionist, therefore, this application before Naib Tehsildaar was moved.

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Learned Trial Court perused the documents at the time of taking cognizance under Section 190 Cr.P.C. At the time of taking cognizance, the evidence collected by I.O. is to be seen, prima facie, Court cannot go to the veracity of those documents

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or evidence filed along with the charge-sheet. It is not open for

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Court at the stage of taking cognizance to look into the defence of accused. It is submitted by learned counsel that the application annexed as Annexure No. 4 which he moved before the I.O. was taken into consideration but it is manifest that no application for reinvestigation of case or transfer of investigation was moved during the investigation proceedings before S.S.P.

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After the conclusion of investigation, when the report under Section 173 Cr.P.C. is filed, then Trial Court has no jurisdiction to consider the defence of accused, hence the order of the Trial Court suffers with no illegality, irregularity or perversity. There is no miscarriage of justice as revisionist has opportunity to adduce the evidence at the stage of charge or discharge, hence at this stage, the revision has no force and is liable to be dismissed.

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In view of the observations as above, instant revision is dismissed .

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However, it is open for revisionist to move an application for enhancement of section at the stage of charge and if the application is moved by the revisionist, it shall be considered by the concerned Official/Court as per the provisions of law.

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(Renu Agarwal,J.)

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Order Date :- 6.7.2023/Karan

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Digitally signed by :- KUMAR KARAN RAO High Court of Judicature at Allahabad, Lucknow Bench

Priya Verma v. State of U.P. Thru. Addl. Prin. Secy. Home Lko. and 5 Others

Case brief

What is this about?

What did the court decide?

Priya Verma v. State of U.P. Thru. Addl. Prin. Secy. Home Lko. and 5 Others

Case brief

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What did the court decide?

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