Achyut Kumar vs State Of U.P. & Others
2012 Latest Caselaw 3356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Heard Sri S.P. Giri, Advocate for revisionist and learned A.G.A. for the State of U.P. None was present on behalf of respondents no. 2 and 3 to argue.

This criminal revision has been filed against the order dated 22/5/2010 passed by the Special Judge, Dacoiti Affected Area, Badaun in Criminal Case No. 304/2009 (Achyut Kumar Vs. Kripa Ram and others) by which learned court has dismissed the complaint filed by Achyut Kumar.

A perusal of the record reveals that Achyut Kumar has filed a complaint against Kripa Ram and one other under Sections 392/427/506 and 323 I.P.C. alleging that on 20.6.2009 at about 10 p.m. when he and his sister Sarita were at home, accused persons came into his house and took away Rs. 30,000/- from his house and a mobile was also taken and they were also assaulted by butt of the gun, knife and dandas. The complainant has examined himself under Section 200 Cr.P.C. and Kamlesh and Vikki have been examined under Section 202 Cr.P.C. The learned court below has dismissed the complaint on the ground that there is no evidence to show that any application was moved before the S.S.P. of the district as envisaged under Section 154(3) Cr.P.C. It was also mentioned that no evidence was produced regarding serious injuries. All the injuries according to injury report are simple.

It was argued by learned counsel for the revisionist that the impugned order does not contain reasoned order. There are specific allegations against the accused persons. There was no occasion to drop the proceedings under Section 203 Cr.P.C. Lastly, it was argued that the court has only to see a prima facie case as to whether there is sufficient ground to proceed against the accused persons or not. The evidence is not to be evaluated as if the court is going to convict the accused persons.

Learned A.G.A. supported the order of learned trial court.

Before proceeding further it will be necessary to quote Sections 203 and 204 Cr.P.C.:-

203. 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.

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-

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

(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.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87.

In the case of Nirmaljit Singh Hoon Vs. State of West Bengal and others AIR 1972 Supreme Court page 2639, the Apex Court has held that:

" Under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under Section 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under Section 202, a Magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under Section 203, he may dismiss the complaint, if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment " no sufficient ground for proceeding". The words 'sufficient ground' used also in Section 209 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit, and not sufficient ground for the purpose of conviction."

The sufficient ground contemplated in the Section 203 Cr.P.C. relates to the fact which the complainant placed before the court and such facts showing prima facie case against the accused.

The complaint cannot be dismissed, merely, on the ground under Section 203 Cr.P.C. that there are discrepancies in the statement of the witnesses (Himanshu Shekhar Sahani Vs. Ighoov Majhi and another 1997 Criminal Law Journal page 3938 Orissa).

In the case of Venka Rajula Vs. Singh Palli Somu Nadiu 1996 (1) crimes page 110 (AP) it has been held that court is not required to assess the evidence and consider the probabilities or improbabilities of the versions of the complaint or evaluate the sworn, the statement of the complaint and witnesses.

In the case of Deputy Chief Controller of imports and exports Vs. Roshan Lal Agrawal AIR 2003 Supreme Court page 1900 it has been held that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding against accused and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the inquiry.

Learned counsel for the revisionist has also relied upon the case of Dr. Mrs. Nupur Talwar Vs. CBI Delhi 2012 (77) ACC 718 and Jagdish Ram Vs. State of Rajasthan and another 2004 (49) ACC 9. These decisions also reiterate the above principle already led by the Apex Court.

In the instant case, learned court below has not given the reasons as to why he is disbelieving the statement of Kamlesh and Vikki recorded under Section 202 Cr.P.C. Learned court has not discussed the evidence to show that there is no sufficient ground for proceeding against the accused person. In the instant case the statement of complainant under Section 200 Cr.P.C. and statement of witnesses under Section 202 Cr.P.C. are unrebutted. There is no cross examination by the court. The injury report shows simple injuries. It is a fact supported by statement under Section 200 and 202 Cr.P.C. that only two persons were involved in the crime. A perusal of the impugned order also reveals that learned court below has assessed the evidence as if he was going to convict the accused persons, which is not permissible in law.

In view of the above, the revision is liable to be allowed and the impugned order is liable to be quashed. The matter is also liable to be remanded back to learned Court to pass fresh and detailed orders after hearing the complainant in accordance with law expeditiously.

The revision is hereby allowed. The impugned order is hereby quashed. The matter is remanded back to the court concerned to pass orders afresh as per law, after hearing the complainant.

( Arvind Kumar Tripathi II,J.)

Order dt.03.08.2012

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