Allahabad High Court
Gyan Dev And Another vs State Of U P And Another on 27 April, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 49
Case :- MATTERS UNDER ARTICLE 227 No. - 1866 of 2023
Petitioner :- Gyan Dev And Another
Respondent :- State Of U P And Another
Counsel for Petitioner :- Ardhendu Shekhar Sharma,Ram Babu Sharma
Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ram Babu Sharma, the learned counsel for petitioners and the learned A.G.A. for State.
Perused the record.
This petition under Article 227 of the Constitution of India has been filed challenging the summoning order dated 17.11.2021 passed by 3rd Additional Civil Judge (Junior Division)/Judicial Magistrate, Budaun in Complaint Case No. 17394 of 2020 (Geeta Vs. Krishna Pal and Others), under Sections 498A IPC and Section 4 D.P. Act, Police Station-Zareef Nagar, District-Budaun as well as the judgment and order dated 20.01.2023 passed by IXth Additional District and Sessions Judge/Special Judge, Gangster Act, Budaun in Criminal Revision No. 82 of 2022 (Gyan Dev and Another Vs. State of U.P. and Another) whereby aforementioned criminal revision arising out of summoning order dated 17.11.2021 has been dismissed.
Learned counsel for petitioners submits that orders impugned in present petition are manifestly illegal and without jurisdiction. Consequently, same are liable to be quashed by this Court. Referring to the material on record, he submits that no such material was adduced by complainant-opposite party 2 before court below, on the basis of which it could be conclusively concluded that marriage of the complainant-opposite party 2 was solemnized with petitioner 2, Krishna Pal. On the above premise, he contends that since the factum of marriage itself was not established, therefore, the summoning of the present petitioners under Section 498A IPC and Sections 3/4 D.P. Act cannot be sustained. As such, the orders impugned in present petition are liable to be quashed by this Court.
Per contra, the learned A.G.A. has vehemently opposed the present petition. He has invited the attention of Court to the statement of the complainant and that of his witness recorded under Sections 200/202 Cr.P.C. Referring to the said statements, he submits that both the witnesses have duly stated that marriage of petitioner 2 was solemnized with complainant-opposite party 2. On the above premise, the learned A.G.A. contends that since prima-facie material was before court below, therefore, no illegality has been committed by court below in passing the impugned summoning order. At the time of summoning of an accused in a complaint, the court has to simply record it's prima-facie satisfaction and not conduct a mini trial for recording the finding that as per the material on record conviction of accused is possible. To buttress his submission, he has relied upon paragraph 37 of the judgment of Supreme Court in Nupur Talwar Vs. CBI (2012) 11 SCC 465. For ready reference the same is reproduced hereinunder:-
" 37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court inCahndra Deo vs. Prokash Chandra Bosealias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under :
"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For 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 enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry underSection 202has been considered. Amongst those decisions are :Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36;Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125;Emperor v. J.A. Finan, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR14 Cal 141. In all these cases, it has been held that the object of the provisions ofSection 202is 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 complaint 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.The learned Judges in some of these cases have been at pains to observe that an enquiry underSection 202is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) ofSection 202itself, 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."
On the above premise, he submits that no question of law and fact is involved in present petition and therefore, the same is liable to be dismissed.
When confronted with above, the learned counsel for petitioners could not overcome the same.
As a result, present petition fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 27.4.2023
Vinay
