Allahabad High Court
Pinku Alias Gyanendra vs State Of U.P. And 5 Others on 8 April, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:50669
Court No. - 71
Case :- APPLICATION U/S 528 BNSS No. - 11263 of 2025
Applicant :- Pinku Alias Gyanendra
Opposite Party :- State Of U.P. And 5 Others
Counsel for Applicant :- Saurabh Tripathi,Sohit Prakash Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. This application u/s 528 BNSS has been filed against the order dated 21.02.2025, passed by the Special Judge (D.A.A.)/Additional Sessions Judge, Court No. 06, Agra, in Complaint No. 26 of 2024 (Pinku @ Gyanendra Vs. Sonu @ Shivam and Others), under Sections - 395 397, 323, 504, 506 I.P.C., Police Station - Basauni, District - Agra, whereby the complaint filed by the applicant against the private opposite parties has been dismissed under Section - 203 Cr.P.C.
3. It is submitted by learned counsel for the applicant that regarding an incident dated 30.10.2022 the applicant has lodged a first information report by moving an application under Section - 156 (3) Cr.P.C., which was registered on 28.04.2023. The police did not investigate the matter properly and a closure report was filed on the next day itself. The applicant has preferred a protest petition, which was registered as a complaint case. Learned counsel submitted that complainant (applicant herein) has stated in his statement under Section - 200 Cr.P.C. that on 30.10.2022 while he was sitting at his home, the opposite party no.2 to 6 came there and abused and assaulted him and they have snatched a golden chain from him. This version of complainant was also supported by the witnesses examined under Section - 202 Cr.P.C. but despite that the impugned complaint has been dismissed by the learned Magistrate vide impugned order dated 21.02.2025. Learned counsel submitted that a prima facie case is made out against opposite party no.2 to 6 and thus, the impugned order is liable to be set aside.
4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order. It was also pointed out that there is remedy of revision against impugned order but the same has not been availed and this application under Section - 528 B.N.S.S. has been filed.
5. I have considered rival submissions and perused the record.
6. Before proceeding further, it would be expedient to go through the provisions as enunciated under Sections 203 and 204 Cr.P.C., which read as under :-
Section 203 Cr.P.C.
"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,"
Section 204 Cr.P.C.
"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."
7. In S.N. Palanitkar v. State of Bihar and another, AIR 2001 SC 12960 while examining the scope of section 203 of Code of Criminal Procedure Code, the Hon'ble Apex Court in paragraphs 15,16 and 17 has held as under :
"15. In case of a complaint under Section 200, Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and the witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 202 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.
16. This Court in Nirmaljit Singh Hoon v. The State of West Bengal and others, (1993)(3)SCC 753), in para 22, referring to scheme of Sections 200-203 of Cr.P.C. has explained that "The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment not sufficient ground for proceeding, he may dismiss the complaint. In Chandra Deo Singh v. Prakash Chandra Bose (1964 (1)SCR 639) where dismissal of a complaint by the Magistrate at the stage of Section 2092 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p.653) that 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 a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."
17. In Smt. Nagawwa v. Veeranna Shivalingappa Kongalgi (1976(3) SCC 736) this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the 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. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being "where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused."
8. Thus, it is clear that as per the procedure prescribed for proceedings with regard to the complaint case after recording the statements of the complainant and witnesses and the result of the inquiry or investigation (if any) under section 202 Cr.P.C., if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he may dismiss the complaint. It is well settled that if a bare perusal of a complaint or the evidence led in support of it shows that essential ingredients of the offence alleged are absent or that the dispute is only a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203 Cr.P.C.
9. What the Magistrate had to determine at the stage of issue of process was not the correctness of the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true.
10. Considering above-stated position of law, in the instant matter it appears that both the parties are residents of the same locality and the complainant has alleged that the opposite party no.2 to 6 came at his house and abused and assaulted him and snatched his golden chain. There is no medical examination report of the complainant to show that he has sustained any injury. The allegation of robbery of golden chain appears quite improbable. Only general and vague allegations have been levelled against the opposite parties. Learned Magistrate has observed that a property related dispute was pending between the parties. Considering facts of the matter, learned Magistrate observed that incident is quite suspicious. In view of attending facts and circumstances of the matter, it cannot be said that impugned order is suffering from any patent illegality or that there has been any abuse of the process of Court or that impugned order has resulted into miscarriage of justice, so as to require any interference by invoking powers under Section - 528 B.N.S.S. The application under Section 482 Cr.P.C. lacks merit and thus, the same is liable to be dismissed.
11. The application under Section - 528 B.N.S.S. is hereby dismissed.
Order Date :- 8.4.2025
S Rawat
