Allowed

Harkesh Kumar Patel and 2 Others v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Allahabad HC3 Jan 2024/12814/2023

Case brief

AI extract

What is this about?

This judgment allowed an application under Section 482 Cr.P.C. to quash summoning orders and a revisional order. The High Court held that the Magistrate failed to follow the mandate of Section 202 Cr.P.C. before issuing summons and that the revisional court erred by not considering the lack of cogent evidence against Section 392 IPC and the pending trial against the complainant's son.

What did the court decide?

Summoning orders dated 07.10.2016 and 06.10.2023 and revisional order dated 07.02.2019 are set aside/quashed; Magistrate directed to pass afresh order in accordance with law.

Harkesh Kumar Patel and 2 Others Vs State of U.P. Thru… — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:467

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 12814 of 2023

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Applicant :- Harkesh Kumar Patel And 2 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Saurabh Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Saurabh Srivastava, learned counsel for the petitioners and Sri Atraya Tripathi, learned Additional Government Advocate for the State.

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In view of the proposed order, notice to opposite party no. 2 is hereby dispensed with.

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By means of this petition under Section 482 Cr.P.C., the petitioners have prayed that the summoning orders dated 07.10.2016 and 06.10.2023 passed by Judicial Magistrate, Kunda, District Pratapgarh in Complaint Case No. 1004/2016 (Purshotam Vs. Harkesh & Others), under Sections 323, 392, 504 & 506 IPC, Police Station Nawabganj, District Pratapgarh as well as order dated 07.02.2019 passed by Additional Sessions Judge-III, Pratapgarh in Criminal Revision No. 254/2016 (Ram Raj and Others Vs. State of U.P. and another) may kindly be quashed and the complaint Case No.1004/2016 may kindly be rejected.

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At the very outset, learned counsel for the petitioners has fairly stated that when the learned revisional court rejected the revision of the petitioners on 07.02.2019 which was filed challenging the summoning order dated 07.10.2016 issued by the Judicial Magistrate, Kunda, Pratapgarh, the petitioners should have approached the appropriate Court of law at the earliest, but on account of improper advise, they could not approach the appropriate Court of law forthwith, therefore, he has requested that if on account of improper advise, the petitioners could not approach the appropriate court of law, they may not be penalized when they have got prima facie case.

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Further attention has been drawn of this Court towards the order dated 07.10.2016 passed by Judicial Magistrate, Kunda Pratapgarh in Complaint Case No. 1004/2016 (Purshotam Vs. Harkesh & Others), under Sections 323, 392, 504 & 506 IPC, Police Station Nawabganj, District Pratapgarh, thereby on the complaint of opposite party no. 2, the learned Magistrate has

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given his prima facie satisfaction to the effect that the offence under Sections 323, 392, 504 and 506 IPC is made out on the basis of material available on record and summoned the petitioners.

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Learned counsel for the petitioners has drawn attention of this Court towards Section 202 Cr.P.C. which clearly provides that any Magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance, may if he thinks fit, shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and may either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He has submitted that in the present case, neither the process has been issued nor the investigation has been directed but instead of dismissing the complaint under Section 203 Cr.P.C., the Magistrate issued summons against the petitioners. He has further submitted that before the revisional court, the specific recital has been taken to the effect that no offence under Section 392 IPC is made out, inasmuch as no recovery memo has been shown to the court concerned nor any medical examination report has been filed. It has also been informed to the court that the complaint in question is an outcome of malafide intention inasmuch in earlier criminal case relating to Case Crime No. 190 of 2015, under Sections 294,279, 337, 304 IPC read with Section 11(IV) (12) of POCSO Act, opposite party no. 2 persuaded the petitioners to enter into compromise, however on 29th of February, 2020, the son of opposite party no. 2 was punished by the learned trial court with the punishment of life imprisonment, therefore, learned counsel for the petitioners has submitted that the order passed by the revisional court dated 07.02.2019 is also perverse and unwarranted inasmuch the aforesaid grounds have not been considered by the revisional court also. Now the summoning order has been issued by the Magistrate on 06.10.2023 which is also impugned in this petition.

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Learned AGA has submitted that if at all the allegations against the petitioners are baseless, they may surrender before the court concerned and may file the application for discharge but that relief may not be granted to the petitioners by this Court invoking the extraordinary provisions of Section 482 Cr.P.C.

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Having heard learned counsel for the parties and having perused the material available on record, I find that while passing the summoning order dated 07.10.2016, the Magistrate

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has not followed the mandate of Section 202 Cr.P.C. If the mandate of Section 202 Cr.P.C. has not been followed in its letter and spirit, the Magistrate should have passed any appropriate order under Section 203 Cr.P.C. Besides, the revisional court has not considered the aforesaid legal lacuna and also did not consider the fact that there was no cogent material/evidence on record to show that Section 392 IPC is made out prima facie. The learned revisional court has also erred in not considering the relevant fact that one criminal case is pending against the son of opposite party no. 2 having serious charges, wherein at the later stage, son of opposite party no. 2 was punished with life imprisonment.

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On the basis of perusal of record, it appears that in the present case, the mandatory compliance of Section 202 Cr.P.C. should have been adhered to, this being a legal ground, so the revisional court should consider this aspect while deciding the revision. The revisional court should have also considered as to whether there is any relevant material/evidence available on record to show that the offence under Section 392 IPC has been made out prima facie. The aspect of counterblast was also relevant in the present case, inasmuch as when the revisional court dismissed the revision of the petitioners, one trial against son of opposite party no. 2 was pending consideration and the allegation of the petitioners should have also been considered that opposite party no. 2 influencing and insisting them to enter into compromise.

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Therefore, for the aforesaid reasons, I find that the summoning orders dated 07.10.2016 and 06.10.2023 passed by Judicial Magistrate, Kunda, District Pratapgarh in Complaint Case No. 1004/2016 (Purshotam Vs. Harkesh & Others), under Sections 323, 392, 504 & 506 IPC, Police Station Nawabganj, District Pratapgarh as well as order dated 07.02.2019 passed by Additional Sessions Judge-III, Pratapgarh in Criminal Revision No. 254/2016 (Ram Raj and Others Vs. State of U.P. and another), are not sustainable in the eye of law, therefore, all the aforesaid orders are hereby set aside/quashed. The learned Magistrate is directed to pass afresh order strictly in accordance with law on the complaint of opposite party no. 2.

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It is needless to say that since the summoning orders dated 07.10.2016 and 06.10.2023 passed by Judicial Magistrate, Kunda, District Pratapgarh as well as order dated 07.02.2019 passed by Additional Sessions Judge-III, Pratapgarh have been set aside, therefore, the appearance of the petitioners before the learned Magistrate court shall be dependent upon any appropriate order, if any, being passed by the Judicial Magistrate.

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The present petition under Section 482 Cr.P.C. is, accordingly, allowed.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 3.1.2024 kkv/

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

Harkesh Kumar Patel and 2 Others v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Case brief

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Harkesh Kumar Patel and 2 Others v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

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