Dismissed¶29

Rudra Prasad v. State of U.P. and 6 Others

Allahabad HC10 Apr 2025NA528/10831/2025

Case brief

AI extract

What is this about?

Section 528 BNSS — interference with summons order in complaint case — Magistrate not bound to summon accused for all offences alleged; scope of inquiry under Sections 203 and 204 Cr.P.C.; prima facie case standard at stage of issue of process; complaint under Sections 504, 506, 392, 342, 434 and 447 IPC; reliance on police report; application dismissed.

What did the court decide?

If a bare perusal of a complaint or the evidence led in support of it shows that the essential ingredients of the offence alleged are absent, or that the dispute is only of a civil nature, or that there are such patent absurdities in the evidence produced that it would be a waste of time to proceed further, the complaint can be properly dismissed under Section 203 Cr.P.C. ¶26

Rudra Prasad Vs State of U.P. and 6 Others — Allahabad HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the order dated 02.12.2024 passed by A.C.J.M.1st, Basti in Complaint Case No. 273 of 2020, summoning opposite party nos. 3 to 7 only for offence under Section 447 IPC without summoning opposite party no. 2 or summoning for offences under Sections 504, 506, 392, 342 and 434 IPC, was liable to be set aside. +2 more

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Court's answer

A Magistrate is not bound to summon the accused persons for all the offences alleged by the complainant; what has to be examined is whether the ingredients of those offences are made out or not.

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Ratio / Principle

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Key takeaways

At the stage of issue of process the Magistrate is not to determine the correctness, probability or improbability of individual items of evidence on disputable grounds, but only the existence of a prima facie case on the assumption that what is stated could be true, unless the prosecution allegations are so fantastic that they could not reasonably be held to be true.ratio¶27
On the material on record it could not be said that there was any abuse of the process of Court or that the impugned order resulted in a miscarriage of justice requiring interference under Section 528 BNSS; the application lacked merit.ratio¶29

Detailed headnote1 paragraphs

High Court of Judicature at Allahabad (Raj Beer Singh, J.): An application under Section 528 BNSS seeking to set aside an order dated 02.12.2024 of A.C.J.M.1st, Basti, whereby opposite party nos. 3 to 7 were summoned in Complaint Case No. 273 of 2020 only for offence under Section 447 IPC, was dismissed. Relying on S.N. Palanitkar v. State of Bihar (AIR 2001 SC 12960), the Court held that at the stage of issue of process the Magistrate need only find a prima facie case, is not bound to summon the accused for all offences alleged in the complaint, and must examine whether the ingredients of each offence are made out; finding no abuse of the process of Court or miscarriage of justice, the Court declined to interfere.

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Neutral Citation No. - 2025:AHC:53774

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Court No. - 71

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Case :- APPLICATION U/S 528 BNSS No. - 10831 of 2025

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Applicant :- Rudra Prasad Opposite Party :- State Of U.P. And 6 Others Counsel for Applicant :- Atmaram Nadiwal,Dinesh Kumar Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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The present application under Section - 528 B.N.S.S. has been filed with the following prayer :-

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"It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and to set aside the order dated 02.12.2024, passed by A.C.J.M.1st, Basti, in Complaint Case No. 273 of 2020 (Rudra Prasad Vs. Pawan Kumar Chaubey and )thers), under Section - 447 I.P.C., Police Station - Kaptanganj, District - Basti, in the interest of justice.

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May further be pleased to direct the learned Magistrate to pass a fresh order in Complaint Case No. 273 of 2020 (Rudra Prasad Vs. Pawan Kumar Chaubey and others), under Section - 504, 506, 392, 342 and 434 I.P.C., Police Station - Kaptanganj, District - Basti, in the interest of justice."

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It is submitted by learned counsel for the applicant that applicant is complainant of the aforesaid case and in the said complaint he has made allegations that as per order of Sub-Divisional Magistrate a mark stone was fixed by ascertaining the land in dispute but in the year 2007 Kanhaiya Lal and Shiv Kumar have uprooted the said mark stone and forcibly took possession over the property. It was alleged that when complainant reported the matter to police, the opposite party no.2 Pawan Kumar Chaubey, the then Station House Officer confined the complainant in lock up and he was let free after taking Rs. 2,000/- from him. Learned counsel submitted that a prima facie case is made out against opposite party no.2 but he has not been summoned. Similarly on the basis of allegations of complainant, offence under Section - 504, 506, 392, 434, 342 I.P.C. are made out but the opposite party no.3 to 7 have been summoned for offence under Section - 447 I.P.C. only. It was submitted that while passing the impugned order learned Magistrate has relied

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mainly on the police report, which is against law. Referring to facts of the matter, it was submitted that impugned order is liable to be set aside.

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Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

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I have considered rival submissions and perused the record.

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Before proceeding further, it would be expedient to go through the provisions as enunciated under Sections 203 and 204 Cr.P.C., which read as under :-

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Section 203 Cr.P.C.

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"Dismissal of complaint- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing,"

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Section 204 Cr.P.C.

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"204.Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

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(a) a summons-case, he shall issue his summons for the attendance of the accused, or

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(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."

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In S.N. Palanitkar v. State of Bihar and another AIR 2001 SC 12960, while examining the scope of section 203 of Code of Criminal Procedure Code, the Hon'ble Apex Court in paragraphs 15,16 and 17 has held as under :

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"15. In case of a complaint under Section 200, Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and the witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 202 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.

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16. This Court in Nirmaljit Singh Hoon v. The State of West Bengal and others , (1993)(3)SCC 753), in para 22, referring to scheme of Sections 200-203 of Cr.P.C. has explained that "The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment not sufficient ground for

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proceeding, he may dismiss the complaint. In Chandra Deo Singh v. Prakash Chandra Bose (1964 (1)SCR 639) where dismissal of a complaint by the Magistrate at the stage of Section 2092 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p.653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."

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17. In Smt. Nagawwa v. Veeranna Shivalingappa Kongalgi (1976(3) SCC 736) this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the Court (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (C) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being "where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused."

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Thus, it is clear that as per the procedure prescribed for proceedings with regard to the complaint case after recording the statements of the complainant and witnesses and the result of the inquiry or investigation (if any) under section 202 Cr.P.C., if the Magistrate is of the opinion that no sufficient ground for proceeding exists, he may dismiss the complaint. It is well settled that if a bare perusal of a complaint or the evidence led in support of it shows that essential ingredients of the offence alleged are absent or that the dispute is only a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203 Cr.P.C.

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What the Magistrate had to determine at the stage of issue of process was not the correctness of the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true.

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Considering above-stated position of law, in the instant matter in his statement under Section - 200 Cr.P.C., the complainant has inter-alia made allegation that in pursuance to the order of Sub-Divisional Magistrate, the 'Lekhpal' has fixed a mark stone at the disputed land but in the year 2007 opposite party no.3 Shiv Kumar and opposite party no.4 Kanhaiya Lal have uprooted the said mark stone and forcibly

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took possession over the disputed property. It was further alleged that when applicant/complainant approached the police, he was confined in the lock up and he was let free by the opposite party no.2 only by taking Rs. 2,000/- from him. After considering the matter learned Magistrate has summoned opposite party no.3 to 7 for offence under Section - 447 I.P.C. As referred above, Magistrate is not bound to summon the accused persons for all the offences alleged by the complainant and it has to be examined whether the ingredients of those offences are made out or not. In the instant matter considering the material on record, it cannot be said that there has been any abuse of the process of Court or the impugned order has resulted into miscarriage of justice, so as to require any interference by invoking powers under Section - 528 B.N.S.S. The application under Section - 528 BNSS lacks merit and thus, the same is liable to be dismissed.

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The application under Section - 528 B.N.S.S. is hereby dismissed .

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Order Date :- 11.4.2025 S Rawat

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Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad

Rudra Prasad v. State of U.P. and 6 Others

Case brief

What is this about?

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Rudra Prasad v. State of U.P. and 6 Others

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