Jokhu And Ors. vs State Of U.P.And Another
2013 Latest Caselaw 6055 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 12
 

 
Case :- MISC. SINGLE No. - 6325 of 2013
 

 
Petitioner :- Jokhu And Ors.
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Karunakar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi (II),J.

1. This writ petition has been filed by the petitioners challenging the order dated 24.7.2013 passed by the Sessions Judge, Gonda by which criminal complaint filed against the summoning order dated 29.8.2013 has been dismissed.

2. A perusal of record reveals that a criminal complaint was filed against the petitioners and after recording the statements under Sections 200 and 202 Cr.P.C. the Magistrate summoned the accused persons to face trial under Sections 352, 504, 506 IPC. Feeling aggrieved, criminal revision was filed, which too was dismissed vide impugned order.

3. It was submitted by the learned counsel for the petitioners that this criminal complaint has been filed as a counter blast to their FIR lodged under Sections 352, 504, 506 IPC and Section 3 (1) (x) of the SC and ST Act and the Magistrate has not considered this aspect while passing the impugned order.

4. Section 204 of the Code of Criminal Procedure is reproduced below: -

"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."

5. 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 as under: -

"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, and 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 of a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is selfcontradictory, or intrinsically untrustworthy, process cannot be refused if that evidence make out a prima-facie case."

6. Similarly, in the case of Chandra Deo Singh vs Prokash Chandra Bose and another, AIR 1963 SC 1430 it has been held by the Court as under: -

"The scope and object of Section 203 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complainant and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction."

7. Lastly, in the above case, the Apex Court concluded as follows: -

"We may point out that since the object of an inquiry under Section 202 Cr.P.C. is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under section 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this." Similarly, the Apex Court in the case of Smt. Nagawwa Vs. Veeramma Shivalingappa Konjalgi and others, 1976 (13) ACC 225 (SC) has held that it is extremely limited only to 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."

8. In the case of S.W. Palanitkar and others Vs. State of Bihar and another, AIR 2001 SC 2960 the Apex Court has held that "at the stage of sections 200 and 202 Cr.P.C. searching sufficient ground to convict is not necessary."

9. From a perusal of above provision, and observations made by the Apex Court, it is clear that the learned trial court is not required to search "sufficient ground to convict" the accused mentioned in the complaint, but it is only required to look at the evidence brought on record with a view to find out as to whether the complainant has made out a prima-facie case against the accused and "sufficient ground to proceed" against the accused, even if he might have a plausible/possible defence.

10. At the time of passing order for summoning the accused, the Magistrate has to look into the statement under Section 200 Cr.P.C. and the statement of the witnesses under Section 202 Cr.P.C. no other material has to be seen. The argument regarding filing of this complaint counter blast may be looked into at the time of defence. At this stage, this argument has no force.

12. From the discussions made above, the writ petition is liable to be dismissed, and is hereby dismissed. However, if the petitioners surrender before the court concerned and move for bail within a period of 30 days from today, the Magistrate shall decide their bail application as expeditiously as possible in view of guidelines laid down in the cases of Pradeep Tyagi Vs. State of U.P. and others, 2009 (65) ACC 443 and Sheo Raj Singh @ Chhuttan vs. State of U.P. and others, 2009 (65) ACC 781. Till thirty days from today, no coercive steps shall be taken against the petitioners.

Order Date :- 25.9.2013

Anupam

(Justice Arvind Kumar Tripathi - II)