Allowed

Smt. Guddi and 9 Others v. State of U.P. and Anr.

Allahabad HC8 Nov 2023CRLR/3222/2013

Case brief

AI extract

What is this about?

High Court allowed criminal revision against summoning order for dacoity charges. Court held lower court issued process in a mechanical manner without examining specific roles of accused in witness statements per Sections 202, 204 Cr.P.C. and 395, 397 IPC.

What did the court decide?

Impugned order set aside; matter remitted to court below to hear and decide issuance of process afresh after hearing both sides.

Smt. Guddi and 9 Others Vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:217159 Reserved On: 28.7.2023 Delivered On: 8.11.2023

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Court No. - 50

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Case :- CRIMINAL REVISION No. - 3222 of 2013

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revisionists :- Smt. Guddi And 9 Others Opposite Party :- State Of U.P. And Anr. Counsel for revisionists :- Kamini Pandey,Ajay Dubey,Ram Jatan Yadav Counsel for Opposite Party :- Govt. Advocate,Sushil Singh

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Hon'ble Ram Manohar Narayan Mishra,J.

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Heard learned counsel for the revisionistss, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record.

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Instant criminal revision has been preferred against the impugned order dated 10.9.2013, passed by Special Judge (D.A.A.), Agra, in Complaint Case No.109 of 2013, Layak Singh Varma vs. Smt. Guddi and Others, under Sections 395, 397 IPC, Police Station Etmadpur, District Agra, whereby the accused revisionists have been summoned to face trial for charges mentioned as above.

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The factual matrix of the case in brief are that the complainant filed an application under Section 156(3) Cr.P.C. before Special Judge (D.A.A.) Agra with averment that on 28.9.2013 at around 10:00 AM, he visited his agricultural field alongwith Narendra Kumar and Kaushlendra. He found that accused persons namely, Smt. Guddi and others were engaged in constructing a wall in his field in illegal manner with a view to grab his field. When he objected to this, accused Ram Prakash pointed butt of a spade and Kishan Singh pointed out his countrymade pistol on temple of the applicant. The accused persons engaged in maar-peet and abused him. The accused persons snatched a gold chain, two mobile phones, one gold ring and Rs.12,000/-, kept in the pocket from the informant. Learned court below treated the application under Section 156(3) Cr.P.C. as complaint case. The statement of the complainant was recorded before Special Court

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under Section 200 Cr.P.C. and that of witnesses Narendra Kumar, Rajkumar and Kaushlendra as PW-1, PW-2 and PW-3 in enquiry under Section 202 Cr.P.C. In injury report of injured Narendra Kumar, nephew of the complainant, 7 injuries were found on his person, which included contusion and abrasion. In the opinion of Doctor, injuries found have been caused by hard and blunt objection and their duration was two days old. The medico legal examination of injured Narendra Kumar was conducted on 2.2.2013 whereas incident occurred on 28.2.2013. Learned court below summoned the accused persons with finding of prima facie case being made out against accused persons named in complaint to put them on trial. The accused persons were summoned by impugned order dated 10.9.2013, which is subject matter of challenge before this Court by way of present criminal revision.

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Learned counsel for the revisionists submitted that there are lot of contradictions in the statement of complainant and his witnesses recorded under Sections 200 and 202 Cr.P.C. before the court below. The complaint has been filed with false and concocted facts in malicious manner. The complainant has not examined all his witnesses in enquiry under Section 202 Cr.P.C. and thus the court below has summoned the accused revisionistss in violation of provisions of Section 202(2) proviso of Cr.P.C., which provides that “if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.” The injuries of witnesses Narendra Kumar are found to be simple by the Doctor. His medico legal examination is conducted on 3rd day of the incident, which creates doubt regarding authenticity of the injuries mentioned therein. Moreover, injuries were found of simple nature in the opinion of the Doctor. The complainant has manipulated a simple injury case into a case of dacoity by introducing false version in his complaint. In fact, no case is made out under Section 395/397 IPC against the revisionistss. It is important to note that from perusal of

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complaint and statement of witnesses recorded under Section 200 and 202 Cr.P.C., this is obvious that there is dispute between the parties regarding agricultural land and for that reason, the complainant implicated all the family members of the revisionists including the ladies of the house that too in a serious charge of commission of dacoity, which is a sheer abuse of process of law. The complaint has been filed at a belated stage after more than one month after the date of the incident and this shows that the complaint version is outcome of afterthought. The impugned order is not sustainable and deserves to be set aside.

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Per contra, learned counsel appearing for the opposite party No.2 submitted that no infirmity or irregularity is there in the impugned order passed by the court below. The complainant is not bound to examine all the witnesses, whose name finds place in the list of witnesses at the stage of enquiry under Section 200 and 202 Cr.P.C. and he is at liberty to skip some of the witnesses at that stage. The court has to see at the stage of issuance of process that whether a prima facie case is made out on the basis of material on record including the statements of complainant and his witnesses recorded during enquiry under Sections 200 and 202 Cr.P.C. The court is not expected to examine the evidence at this stage in meticulous manner.

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Section 395 and 397 IPC, in which the accused persons are summoned to face trial are provides as under:-

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“395. Punishment for dacoity.—Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

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397. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”

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This Court in Application U/S 482 No.5705 of 2006 (Sanjeev

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Kumar and others vs. State of U.P. and Another) , considered the scope of proviso of Section 202, sub-Section 2 of Cr.P.c. and held that “if Complainant wanted to examine only three witnesses in support of complaint and on that Magistrate was satisfied, it cannot be said that unless all persons named in complaint are examined as witnesses, no order of summoning could have been passed by Magistrate. From perusal of complaint and statements of complainant and witnesses recorded under Section 200 and 202 Cr. P. C., respectively, it cannot be said that no prima facie case relating to offences in which applicants have been summoned, is made out.” This Court placed reliance on a judgement of Apex Court in In Rosy and others vs. State of Kerala and others, 2000 (2) SCC 230, Hon'ble M. B. Shah, J (another opinion by Hon'ble K. T. Thomas, J) recorded a separate but concurrent judgment and said as under :

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"It is settled law that the inquiry under Section 202 is of limited nature. Firstly, to find out whether there is a prima facie case in issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose being of finding out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 Cr.P.C. the accused has no right to intervene and that it is the duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made."

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(emphasis added)

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8. In para 20 of Rosy and Others vs. State of Kerala (supra), Hon'ble M. B. Shah, J. deduced certain principles as under :

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I. (a) Under Section 200 Magistrate has the jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present.

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(b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses.

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(c) In such case Court may issue process or dismiss the complaint.

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II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by other person authorised by him.

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(b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, the proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by the complainant under Section 204 (2) before issuance of the process,

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(c) The irregularity or non-compliance therewith would not vitiate further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later."

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This Court placing reliance on above observation held that thus, evidently statement recorded under Section 202 Cr.P.C. is not for punishing the accused. The purpose of Section 202 Cr.P.C. is that Magistrate has not to ascertain truth or falsehood of complaint as in old Code, but to decide whether or not there is sufficient ground for proceeding. Issue of process should not be mechanical and it should be based on some material. The words "all his witnesses" contained in Sub sec (2), proviso to Section 202 Cr.P. C. cannot be read as "all witnesses". It has been held in Satyadeo Pandey and others v. State of U. P. and another, 1987 (1) AWC 57 2 that words "all his witnesses" connote that all the witnesses of the complainant, associated or connected with his interest and those witnesses who are material and relevant to prove prosecution case, must be examined. The words "all his witnesses" under proviso to Section 202 Cr.P.C. do not refer literally to all prosecution witnesses in number rather all his witnesses (i.e. of complainant) and to whom he considers material to prove his case.

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This Court while dismissing the application under Section 482 Cr.P.C. held that even though in complaint, several persons were named as witnesses but only three persons were examined under Section 202 Cr.P.C. and consequently, process was issued, the procedure adopted by Court below cannot be said to be vitiated in law and submission to that effect is clearly erroneous and contrary to above discussions, hence,

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rejected.

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Thus, in instant case, the contention of learned counsel for the revisionists that as all the witnesses named in list of witnesses filed alongwith complaint were not examined before the court below at the stage of enquiry under Section 202 Cr.P.c., the summoning order stands vitiated gathers no mass, in the light of aforesaid judicial authority. Even a copy of list of witnesses has been filed by the revisionistss himself in which four witnesses of fact and three formal witnesses are cited, out of whom, all the four witnesses of fact has been examined and summoning order has been passed by the learned court below on the basis of statement of complainant and his witnesses recorded under Section 200 and 202 Cr.P.C. Learned court below has cited statements of the complainant recorded under Section 200 Cr.P.C. and further stated that the witnesses Narendra Kumar, Rajkumar and Kaushlendra Singh have supported the complaint version in their statements recorded under Section 202 Cr.P.C. and they have stated that accused persons engaged in maar-peet with the complainant and his nephews and robbed a gold chain, two mobile phones, one gold ring and Rs.12,000/- cash, kept by the complainant. This is settled law that at the stage of summoning under Section 203 and 204 Cr.P.C. The Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to adopt by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing of charges and at the stage of issue of process, Magistrate can refuse to issue process only when he finds that the evidence led by complainant is self contrary or intrinsically untrustworthy.

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12. Hon'ble Apex Court in Lallan Kumar Singh & Others vs. State of Maharashtra, 2022 LiveLaw (SC) 833 , held as under:-

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28. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made

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to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, which reads thus:

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“51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

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52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

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53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.”

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In present case, the order-sheet of the court below has been filed, which reveals that the revisionist No.7 Lokman has died and the trial in respect of him has abated vide order dated 27.4.2023 passed by the court below. Process of NBW, 82 and 83 has been directed to be issued against accused Nitesh, Guddi, Ram Prakash, Dev Lal, Mahesh and Anil. Accused Vinod, Ram Narayan and Kishan are held in jail custody in present case, as they were arrested on 6.4.2023. However, learned counsel for the revisionists submitted that these three accused persons are enlarged on bail, subsequently.

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If we go through the statements of complainant and witnesses in the light of averment in application under Section 156(3) Cr.P.C., which is treated by court below as complaint, specific averment of robbing the cash and valuables from complainant is attributed to accused Ram Narayan, Vinod and Dev Lal whereas the complainant and witnesses have stated that Ram Prakash and Kishan pointed out butt of spade and countrymade pistol to the complainant, thus, out of ten named accused

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persons specific role has been attributed against these five persons in complaint as well as statement of complainant and witnesses recorded before the court below, which formed basis of impugned summoning order. Even specific allegations of abusing the complainant and threatening him are attributed to accused Kishan. Therefore, it can be inferred that no specific role has been assigned to accused Guddi, Deceased Lokman, Nitesh and Anil in their statements recorded under Sections 200 and 202 Cr.P.C. In the present case, where enmity with regard to land is admitted by the parties and ten persons are named as accused in the complaint, it is bounden duty of the court below to ensure that there may not be misuse of judicial process by naming a number of persons in the array of accused/opposite party. For application under Section 397 I.P.C., it is necessary that the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person at the time of robbery or dacoity. In the present case, simple injury has been received by one of the witnesses according to his injury report. Specific allegations are made that accused Ram Prakash came to the complainant having butt of his spade, which is a blunt object and only specific allegation is made against accused Kishan Singh, who has pointed out a countrymade pistol to the temple of the complainant.

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Although, the Court is required to find out only, prima facie, case at the stage of issuing process to the accused under Section 204 Cr.P.C. and he has to apply his mind as to whether sufficient grounds for proceeding in the case exists or not against the accused but the formation of such opinion is required to be reflected in the order itself. In the present case, learned court below has directed issuance of process against all the named accused persons in the complaint without considering the statements of complainant and his witnesses in proper perspective. Hon'ble Apex Court in Ritesh Chakravarti vs. State of M.P, 2006 12 SCC 321, observed that this is principle of criminal jurisprudence that more serious is offence,

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stricter degree of proof is required.

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Thus, in the light of foregoing discussions, this Court is of considered opinion that the learned court below has directed issuance of process against the revisionists in cursory and mechanical manner without considering the statements of the complainant and witnesses recorded under Section 200 and 202 Cr.P.C. in proper perspective to find out a prima facie case to summon them to face trial for a serious offence under Section 395/397 IPC. Learned court below has failed to examine the role assigned to the accused persons in the offence, which is reflected from perusal of statement of the complainant and his witnesses, thus, impugned order is not sustainable as it is vitiated by legal and factual error.

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Consequently, the revision is allowed and the impugned order passed by the learned court below is set aside. Matter is remitted back to court below to hear and decide the question of issuance of process to accused persons afresh, after giving an opportunity of hearing to the complainant and opposite parties, in the light of observations made in present criminal revision.

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Let a copy be forwarded to court concerned for information/necessary action.

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Order Date :- 8.11.2023 Kamarjahan

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Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad

Smt. Guddi and 9 Others v. State of U.P. and Anr.

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Smt. Guddi and 9 Others v. State of U.P. and Anr.

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