Dismissed

Smt. Shahnaj Bano v. State of U.P. Thru. the Addl. Chief Secy. Ministry of Homes Lko. and Others

Allahabad HC26 Sept 2024/8720/2024

Case brief

AI extract

What is this about?

This appeal challenges a revisional court order quashing a summoning order. The High Court held that the revisional court correctly relied on implausibility of undisclosed witnesses and insufficient materials, applying the Nagawwa guidelines, thus dismissing the application.

What did the court decide?

The instant petition was disposed of without interference; the impugned order of the revisional court was upheld.

Smt. Shahnaj Bano Vs State of U.P. Thru. the… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:66904

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 8720 of 2024

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Applicant :- Smt. Shahnaj Bano Opposite Party :- State Of U.P. Thru. The Addl. Chief Secy. Ministry Of Homes Lko. And Others Counsel for Applicant :- Vijai Shankar Tripathi,Jaideep Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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1. Heard.

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Under challenge is the order passed by the learned revisional court dated 16.08.2024 passed in Criminal Revision No.127 of 2023 in re: Kamruddin and others vs. State of U.P. and others, whereby the learned revisional court has set-aside the summoning order dated 03.01.2023 and remanded the matter to the learned trial court to pass a fresh order after considering the points indicated in the said judgment.

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The contention of learned counsel for the applicant is that upon a complaint being filed under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as the 'Code') by the revisionist the learned trial court vide order dated 03.01.2023, a copy of which is Annexure-8 to the revision, summoned the private respondents herein for an offence under Sections 323, 504, 506 and 452 IPC. One of the private respondents had also been summoned for an offence under Section 354 IPC apart from other provisions of the IPC.

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Upon a challenge being raised by the private respondents herein by filing of the aforesaid revision, the revisional court vide order dated 16.08.2024 had set-aside the summoning order and remanded back the matter for a fresh decision considering the points as indicated in the revision.

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Being aggrieved, instant petition has been filed.

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Learned counsel for the applicant while seeking to challenge the order impugned dated 16.02.2024 has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Leena Vivek Masal vs. State of Maharashtra and another - (2018) 1 SCC 781 and Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and others - (1976) 3 SCC 736 to contend that

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Hon'ble Supreme Court in both the cases have held that the revisional court should not enter into the merits of the case.

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The aforesaid argument of learned counsel for the applicant is found patently fallacious.

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The reason is that after the summoning order had been issued and upon a challenge being raised to the said summoning order by the private respondents the learned revisional court has specifically recorded while allowing the revision that (a) the statement of the witness as recorded under Section 202 Cr.P.C. is implausible inasmuch as the said witness resides at a distance of 30 to 35 KM away and it has not been indicated as to how he reached that particular site on the said date and (b) although two persons namely Rafikunnisha and Fatima who are the mother and aunt of the complainant are said to be the witnesses yet their statements have not been recorded and neither their names have been indicated in the complaint. Considering the aforesaid, the learned revisional court has passed the order impugned.

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Apart from the fact that learned revisional court has considered the implausibility of the witness whose statement has been recorded under Section 202 of the Code which has not been found to be proper in the eyes of law, the other aspect of the matter is that Hon'ble Supreme Court while dealing with the case of Leena Vivek Masal (supra) has refused to exercise jurisdiction on the ground that the summoning order was an interim order and there would not be any occasion for exercising the appellate jurisdiction as vested under Article 136 of the Constitution of India.

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So far as the judgment of Hon'ble Supreme Court in the case of Smt. Nagawwa(supra) is concerned, paragraph 5 of the said judgment itself indicates that the Hon'ble Supreme Court has laid down the guidelines and situations in which case an order of the Magistrate issuing a process against an accused can be quashed.

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Of the four guidelines as have been laid down which have also been indicated to be only illustrative one of the guidelines indicate that where the allegations made in the complaint are patently absurd and inherently improbable or where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on no materials which are wholly irrelevant or inadmissible then the said summons may be quashed.

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As already indicated above, from perusal of the judgment of the learned revisional court it clearly emerges that the learned

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revisional court has considered the implausibility of the statement of one of the witnesses of the many grounds which has prevailed upon him in setting aside the said order.

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Keeping in view the aforesaid discussion, it is apparent that the order passed by the learned revisional court is in consonance to the order passed by the Hon'ble Supreme Court in the case of Smt. Nagawwa(supra) and the guidelines framed thereunder.

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Considering the aforesaid, no case for interference is made out. The petition is disposed of.

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Order Date :- 26.9.2024

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A. Katiyar

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Digitally signed by :- AMIT KATIYAR High Court of Judicature at Allahabad, Lucknow Bench

Smt. Shahnaj Bano v. State of U.P. Thru. the Addl. Chief Secy. Ministry of Homes Lko. and Others

Case brief

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Smt. Shahnaj Bano v. State of U.P. Thru. the Addl. Chief Secy. Ministry of Homes Lko. and Others

Case brief

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