Anil Kumar Singh vs State Of U.P. And Others
2016 Latest Caselaw 7679 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                                         RESERVED
 

 
Court No. - 44
 

 
Case :- CRIMINAL REVISION No. - 1912 of 2012 
 

 
Revisionist :- Anil Kumar Singh 
 
Opposite Party :- State Of U.P. And Others 
 
Counsel for Revisionist :- Nitin Gupta 
 
Counsel for Opposite Party :- Govt. Advocate,Satish Kumar Tyagi 
 

 
Hon'ble Amar Singh Chauhan,J. 

This criminal revision has been filed against the judgement and order dated 17.5.2012 passed by learned Additional District and Sessions Judge, Court No. 11, Ghaziabad in Criminal Revision No. 416 of 2011 (Hanuman Prasad Bansal and others vs. Anil Kumar Singh and State of U.P.) whereby the revision was allowed and set aside the summoning order passed by Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad in Complaint Case No. 62 of 2011 under sections 323, 504, 506 IPC, Police Station Sahibabad, District Ghaziabad.

The facts which are requisite to be stated for adjudication of this revision are that complaint was filed with the allegation that complainant is law abiding person. Opposite party wanted to dispossess him illegally so that he filed a case in the court of Civil Judge, Ghaziabad which is pending as yet. On 29.8.2009, opposite party nos. 1 to 5 along with four to five miscreants came to the complainant's house and started beating the complainant with iron rod, knife and lathi and also extended threat to kill him. Complainant got severe injuries He further submitted that then he went to police station to lodge the First Information Report but it was not lodged by them. The complainant was examined under section 200 Cr.P.C. and evidence was recorded under section 202 Cr.P.C. The complainant also filed affidavit in support of complaint and prayed to the court to summon the opposite parties in proper sections.

After hearing the complainant and perusing the statement under sections 200 and 202 Cr.P.C. the Additional Chief Judicial Magistrate comes to the conclusion that there is sufficient material forming prima facie case against opposite parties and, therefore, the opposite parties were summoned under sections 323, 504, 506 IPC to face trial. Against which revision was filed by the accused-opposite parties. The revisional court allowed the revision by impugned order dated 17.5.2012 and set aside the summoning order on the ground that revisionist did not disclose the filing of application under section 156(3) Cr.P.C. of the same occurrence.

Feeling aggrieved, the revisionist/complainant came up before this Court in this revision.

Heard Sri Nitin Gupta, learned counsel for the revisionist, learned AGA for the State and Sri Ashish Agrawal, learned counsel appearing for opposite party nos. 2 to 5 and perused the record.

Learned counsel for the revisionist submitted that he has made report on 30.8.2009 to the Senior Superintendent of Police, Ghaziabad regarding occurrence dated 29.8.2009 but no case was registered against the respondent. Aggrieved from the inaction of the police authorities, the revisionist filed an application under section 156(3) Cr.P.C. on 08.09.2009 and the same was dismissed on 03.12.2009 without considering that the case of the revisionist is constituted a cognizable offence. Another application of revisionist under section 156(3) Cr.P.C. was as a wrong advice of the advocate and the revisionist has not pursued the same and it was also rejected in non- prosecution vide order dated 14.6.2011. The revisionist has no option but to file a complaint case before the Additional Chief Judicial Magistrate, Court No. 8, Ghazibad. On being satisfied that prima facie case is made out against the opposite parties, learned ACJM passed the summoning order to face trial under sections 323, 504, 506 IPC. The revisional court set aside the summoning order without following the settled principle of law. The revisionist has sustained grievous injury in the occurrence and there is oral evidence in corroboration of the injury report forming prima facie case against the opposite parties. It is further submitted that the revisional court has committed error by setting aside the order on the ground that complainant did not disclose the application moved under section 156(3) Cr.P.C. whereas that application was also dismissed earlier too. Complaint case is the cross case and it cannot be said that who is the aggressor at the stage of summoning in the complaint case. It can only be decided during trial. There is no requirement to give details of any application moved under section 156(3) Cr.P.C. rejected earlier.

Per contra learned counsel for the opposite parties/respondents contends that revisionist is the tenant of the opposite party and has adopted all means and measures to obstruct the opposite parties from entering into their own building. Earlier on 29.8.2009 when the opposite party had gone to demand pay of rent due, they have been beaten by kulhari. Therefore, FIR was lodged by opposite parties under sections 323, 324, 504, 506 and 427 IPC bearing Case Crime No. 1803 of 2009. The police authorities after going through the investigation submitted charge sheet against the revisionis. Pursuant to that charge sheet the criminal trial is going on against the revisionist. It is further pertinent to mention here that civil suit proceedings was initiated by means of SCC Suit No. 5 of 2012 for eviction of revisionist which was decreed by trial court on 31.3.2015. Against which SCC Revision No. 150 of 2015 was filed which was also dismissed on 11.12.2013. The said order of ejectment has attained finality up to the Apex Court wherein Special Leave Petition No. 2256 of 2016 filed before the Apex Court by the revisionist, has been dismissed. Despite of having lost up to Apex Court, the tenant-revisionist has adopted all means and measures to harass the opposite parties. After lodging of FIR by the opposite parties-landlord of incident dated 29.8.2009, with ulterior motive, a Complaint Case No. 62 of 2011, after a gap of two years, was filed alleging the same incident on 29.8.2009 with mala fide intention to obstruct the criminal proceedings so initiated against the revisionist. The factum of the pendency of the criminal case proceedings as against revisionist was also concealed in the said complaint case. Therefore, he has played fraud upon the court. Therefore, the summoning order was rejected by revisional court.

In this revision, the main point of determination is that whether there is sufficient material to proceed against the revisionist and allegation substantiated by evidence is making the prima facie against the opposite parties.

Before averting to the claim of the parties, it is useful to quote the provision of section 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".

The expression "sufficient ground" in section 203 Cr.P.C. points exclusively to the facts which the complainant brings to the knowledge of the Magistrate for establishing a prima facie case against the suspected accused. The decision whether there is sufficient ground must be reached by the exercise of discretion based upon judicial consideration. A Magistrate may dismiss a complaint (a) if he finds that no offence has been committed upon the statement of the complainant; (b) if he distrust the statements by the complainant, and (c) if he finds that there is no sufficient ground for proceeding.

Relative scope of sections 203 and 204 Cr.P.C. was noticed and considered by Hon'ble the Supreme Court in Pepsi Foods Limited and another Vs. Special Judicial Magistrate and others (1998) 5 SCC 749 and held as under:

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In the case in hand, the summoning order passed by Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad, was set aside by the revisional court on the ground that revisionist had not disclosed the application moved under section 156(3) Cr.P.C of the same occurrence whereas that application was rejected earlier to the passing of the summoning order in non-prosecution. There was no requirement to give details of the application moved under section 156(3) Cr.P.C. which was rejected in non-prosecution at pre-cognizance stage. The said order by which the application was rejected in non-prosecution neither determine the right nor obligation of the parties and it cannot be said that by non-disclosing of the said rejection of the application would amount to fraud upon the court. It is likely to be mentioned that revisionist has sustained injuries on his body but in the cross case the revisionist did not discloses as to how revisionist has sustained that injury. The cross case is also supposed to be decided on its own merit.

The order passed by learned ACJM whereby it is concluded that prima facie case is made out against the opposite parties, is justified one. The order of summoning was challenged by opposite party before the revisional court but the revisional court substitutes its own view for that of the Magistrate on a question of fact where the Magistrate has formed his opinion on consideration of the material before him and prima facie opinion cannot be said to be patently erroneous or perverse that the said opinion cannot be interfered with by the revisional court on reassessment of evidence and on a detailed scrutiny or shifting of the evidence. The Magistrate having issued the process under section 204 Cr.P.C. has no power to review its own order and only remedy available against the issuance of process under section 482 Cr.P.C. as held by the Apex Court in Adalat Prasad vs. Rooplal Jindal and others, AIR 2004, SC 4674. In another case of Subramanium Sethuraman vs. State of Maharashtra and another, 2005 (51) ACC P. 684, the Apex Court has held that revision is not maintainable against the summoning order only remedy available to seek inherent power under section 482 Cr.P.C. if there is any miscarriage of justice.

In view of the above discussion, I find that order of issuing the process by the Magistrate is justified. The impugned order passed by the revisional court is not liable to be sustained as it suffers from illegality.

Revision is allowed.

The impugned order passed by the revisional court is hereby set aside and the order passed by learned Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad in Complaint Case No. 62 of 2011 for summoning the accused is upheld.

There is no order for cost.

Communicate this order to the court concerned for necessary compliance.

Order Date :- 21.12.2016

Puspendra.