Sanjay Sharma And 2 Others vs State Of U.P. And Another
2021 Latest Caselaw 1716 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 A.F.R.                            
 
Reserved on 05.11.2020 
 
  			             Delivered on 29.01.2021
 
Court No. - 42
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3175 of 2020
 

 
Petitioner :- Sanjay Sharma And 2 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Mohd. Kalim,Abrar Ahmad Siddiqui,Narendra Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ravi Nath Tilhari,J.

1. Heard Shri N.K. Pandey, learned counsel for the petitioners; Shri Prashant Sharma, learned counsel for opposite party no. 2 and the learned A.G.A. for the State.

2. The petitioners/applicants have challenged the order dated 13.10.2020 passed by Additional Sessions Judge, Room No. 4, Saharanpur in Criminal Revision No. 128 of 2020 (Sanjay Sharma and other versus State of U.P. and another) and the summoning order dated 23.06.2020 passed by the Chief Judicial Magistrate, Saharanpur in Complaint Case No. 1657 of 2020 against applicant no. 1 under Sections 376, 354, 323, 504, 506 I.P.C. and against other applicants under Sections 376/120B, 323, 504 and 506 I.P.C. at Police Station-Sadar Bazar, District-Saharanpur.

3. Briefly stated facts of the case are that the opposite party no. 2 filed a complaint under Sections 376, 120B, 354, 323, 504, 506 I.P.C., Police Station Sadar Bazar, District Saharanpur against the applicants alleging that the applicant no. 1 committed rape and all the accused persons harassed her for dowry. The Magistrate recorded the statement of opposite party no. 2 under Section 200 Cr.P.C. and the statements of the witnesses P.W. 1, P.W. 2 and P.W. 3 under Section 202 Cr.P.C. Thereafter, the Magistrate summoned the applicants by order dated 23.06.2020. The applicants filed Criminal Revision No. 128 of 2020 which was rejected on 13.10.2020.

4. Learned counsel for the petitioners submits that the orders under challenge have been passed without application of judicial mind and mechanically. He submits that after filing the complaint, the Magistrate called for police report and as per that report filed on 10.06.2020 the matter pertained to property dispute between the parties and all the allegations were levelled, falsely, only to create pressure. He further submits that the opposite party no. 2 took A.T.M. Card of the applicant no. 1 and had withdrawn Rs. 1,09,000/- on different dates regarding which a complaint was made to the S.S.P. Saharanpur on 30.01.2020 as well as on I.G.R.S. Portal. Thereafter, the application under Section 156(3) Cr.P.C., was also filed on 11.03.2020 upon which an F.I.R. was lodged in Case Crime No. 356 of 2020 under Sections 379, 406 I.P.C. on 25.07.2020 at Police Station Sadar Bazar, District-Saharanpur. He further submits that the opposite party no. 2 had filed another complaint against the applicants and others on 11.03.2020 almost with the same allegations to cause the harassment of the applicant and extract money. Learned counsel for the applicants further submits that the summoning order as well as the revisional order are  based on the recorded conversation in C.D. which was made part of the complaint case, but even from the hearing of the C.D. it would appear that the applicants have been falsely implicated.

5. The further submission of the learned counsel for the petitioners is that the statement of the Doctor, P.W. 3 did not support the complaint case, in as much as his submission is that complainant did not state the commission of rape to the said doctor.

6. Learned counsel for the opposite party no. 2 submits that the averments of the complaint are supported by the material on record and do make out case of commission of cognizable offence against the applicants. The Magistrate has passed the order of summoning of applicants satisfying prima facie that a cognizable offence is made out and such satisfaction being based on material on record which finds consideration by the Magistrate, including the material in the form of C.D. filed by the complainant which was also heard by the said Magistrate, the order of summoning is perfectly justified. At this stage, the Magistrate has to satisfy, only prima facie, for the purposes of summoning the accused persons. So far as the submission of the learned counsel for the applicants, in the nature of the defence of the applicants is concerned learned counsel for the opposite party no. 2 submits that at the stage of summoning, the defense of the accused persons cannot be considered, particularly which defense is in the nature of disputed facts and require evidence for adjudication which can be done only during trial. He has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Bhushan Kumar versus State (NCT of Delhi) reported in AIR 2012 SC 1747.

7. Learned counsel for the opposite party no. 2 further submits that the order passed in revision does not suffer from any illegality and calls for no interference in as much as the revisional court has passed the order on correct appreciation of the legal principles as laid down in the judgments upon which reliance has been placed by the revisional court in the facts of the present case.

8. Learned A.G.A. has supported the stand taken by the learned counsel for the opposite party no. 2 and has submitted that the orders under challenge do not suffer from any illegality and call for no interference in the exercise of jurisdiction under Article 227 of the Constitution of India.

9. I have considered the submissions advanced by the learned counsel for the petitioners; for opposite party no. 2 and learned A.G.A. and has perused the material on record.

10. It has been well settled by now, that at the stage of summoning, the Magistrate is required to apply his judicial mind only with a view to find out whether a prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version nor is he required to evaluate the merits of the materials or evidence of the complainant, as has been laid down by Hon'ble the Supreme Court in the case of R.R. Kapur Vs. State of Panjab, reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SCC 604. The power under Section 482 Cr.P.C. is exercised by the High Court only in exceptional circumstances and only when a prima facie case is not made out against the accused persons. The disputed defence of the accused cannot be considered at this stage.

11. In the case of Bhushan Kumar (supra), the Hon'ble Supreme Court has reiterated the above principles. It has been further held that the summoning order under Section 204 of the code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the material filed therewith. Paragraph nos. 13 to 15 of Bhushan Kumar (supra), read as follows:

"13) In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.

14) In Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal & Ors. (2003) 4 SCC 139, this Court, in para 9, held as under:

9. 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 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 inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6)

"The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order."

15) In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2 SCC 147, this Court, in paragraph 23, held as under:

"It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."

12. In Sonu Gupta versus Deepak Gupta and others (2015) 3 SCC 424, the Hon'ble Supreme Court has held as under in paragraph 8:-

"8...... At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence or in other words to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not."

13. This Court on perusal of the complaint finds that the averments thereof make out a case of commission of cogniable offence, prima facie for summoning of the accused persons. Those averments are duly supported by the statement of the complaint under Section 200 Cr.P.C. and of the witness examined under Section 202 Cr.P.C.

14. The Magistrate, as is evident from the order of summoning, heard conversation as recorded in the C.D. On consideration of the material before the Magistrate, in its totality, the Magistrate by a reasoned and speaking order and after hearing the applicants has passed the summoning order being satisfied that prima facie case for summoning was made out. Such satisfaction is also reflected in the order.

15. Learned counsel for the petitioners could not demonstrate as to how the summoning order suffers from illegality or perversity or improper exercise or that any case for summoning the accused persons, was not made out, even prima facie, on the basis of the averments in the complaint and the material on record.

16. So far as the submission of learned counsel for the petitioners, that there is contradiction in the statement of the witnesses as from the statement of the doctor P.W. 3, it is evident that the complainant did not state about the commission of rape to the doctor, is concerned, the said submission deserves rejection.

17. I have perused the statement of the doctor P.W.-3, which shows that the complainant was taken to the hospital, SBD Hospital Saharanpur, where the Doctor P.W. 3 attended the complainant on emergency call from the Hospital and she was brought in a semi conscious condition and her condition was not good. Under the circumstances, if no disclosure of commission of rape was made to the Doctor as alleged, the same cannot be considered as the contradiction in the statement of the witnesses, when read along with the statement of P.W. 1 and P.W. 2. who have categorically supported the averments of the complaint of commission of rape.

18. So far as the submission of the learned counsel for the petitioners that the petitioners have been falsely implicated due to some civil dispute/family dispute/matrimonial dispute, the same is in the nature of their defense, which require adjudication on the basis of evidence and cannot be determined at this stage of summoning in the exercise of jurisdiction under Article 227 of the Constitution of India. The disputed defense cannot be looked at this stage nor can be the basis for interference with the summoning order.

19. In Harshendra Kumar versus Rebatilata Koley & others (2011) 3 SCC 351, the Hon'ble Supreme Court has held that it is fairly well settled that while exercising inherent jurisdiction under Section 482 Cr.P.C. Or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of the accusations.

20. The same principles shall apply when challenge is made to the summoning order even in a petition under Article 227 of the Constitution of India.

21. The order passed by the Magistrate is in conformity with the settled law.

22. So far as the revisional order is concerned the same is also passed on consideration of the legal principles and applying the same correctly to the facts of the case before the revisional court.

23. In the case of Prasoon Kumar Srivastava versus State of U.P. 1999 CriLJ 3375 this Court has held that the revision against the summoning order has to be disposed of considering whether there was anything illegal in the summoning order passed by the Magistrate on the basis of material placed before him under Sections 200 and 202 Cr.P.C. and if the Court finds that there was material before the Magistrate and on the said material the Magistrate was satisfied that a case for summoning is made out, prima facie, in the exercise of revisional jurisdiction the Court will not interfere in such discretion by the Magistrate. Neither new material could be considered nor the revisional court could consider whether the material laid before the Magistrate under Sections 200 and 202 Cr.P.C. was credible or reliable or not. In Prasoon (supra) this Court has held as under in paragraph nos. 7, 8 and 11:-

"7. I may also refer a single Judge authority of this Court in the case of Riyasat Ali v. State of U. P., reported in 1992 Cri LJ 1217 wherein it was said:

...When the allegations contained in the complaint disclose an offence and the same allegations have been substantiated by the evidence of the witnesses examined under Section. 200 and 202 and the Magistrate is satisfied that there are reasons to proceed against the accused persons, the order of the Magistrate should not be interfered with lightly. It is the subjective satisfaction of the Magistrate after taking an objective view of the allegations made in the complaint and in the evidence of the witnesses examined by the complaint. The Sessions Judge while exercising revisional power is not expected to find discrepancy in the case of the complainant. The allegations in the complaint and evidence of the witnesses are to be taken at their face value, as the Magistrate can himself discharge or acquit the accused if the accused after appearing before him satisfied the Magistrate in this regard.

8. It has been held by the Apex Court in the case of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose, reported in AIR 1963 SC 1430 : (1963 (2) Cri LJ 397):

...Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired at the trial.

The Apex Court further said :-

...No doubt, as stated in sub-section (1) of Section. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.

11. The plain position is that the revision against the summoning order has to be disposed of considering whether there was anything illegal in the summoning order passed by the learned Magistrate on the basis of the material placed before him under Sections 200 and 202, Cr. P. C. If there is such prima facie material, as obviously is present on the record in this case, then it is not open for this Court to take into consideration the extraneous material filed from the side of the accused-revisionists along with the revision petition. There is no provision for placing on record additional material in the revision against the summoning order and the Court would be traveling beyond its jurisdiction if it relied on any extraneous material other than the material led before the learned Magistrate under Sections 200 and 202, Cr. P. C. It is always open to the accused to place material before the learned Magistrate at the trial which may knock the bottom out of the prosecution case. Any such material cannot be looked into at this stage to Judge whether the material led before the learned Magistrate under Sections 200 and 202, Cr. P. C. was credible or reliable or not."

24. The order passed by the revisional Court is also perfectly in accordance with law.

25. This Court does not find any illegality in the orders under challenge.

26. The petition under Article 227 of the Constitution of India is devoid of merit. The prayer for quashing the summoning order and the revisional order, along with the proceedings of the complaint case, is hereby refused. This petition is dismissed.

27. No orders as to cost.

Order Date :-29.01.2021

SY

(Ravi Nath Tilhari,J.)