Allahabad High Court
Kamlesh Baboo vs State Of U.P. And 2 Others on 17 May, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:82399
Court No. - 71
Case :- APPLICATION U/S 528 BNSS No. - 14374 of 2025
Applicant :- Kamlesh Baboo
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Jitendra Yadav,Sanjay Kumar Yadav
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 under Section 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred as 'BNSS') has been preferred against the order dated 13.02.2025, passed by learned Special Judge (S.C. / S.T. Act), Kaushambi in Complaint Case No. 28 of 2024 (Kamlesh Baboo Vs. Deputy Chief Medical Officer, Kaushambi and Others)., Police Station - Sandipanghat, District- Kaushambi, 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 impugned order is against facts and law and thus liable to be set aside. The applicant has lodged the impugned complaint against opposite party no.2 and 3 making allegations that they have reached at the clinic of his brother, being run by name of 'Aditi Integrated Pharma Clinic' and made a demand of Rs. 50,000/- from him. When the said demand was not fulfilled, they have abused and threatened the applicant. On 03.01.2024 the opposite party no. 2 and 3 along with their sub-ordinates and police constables again reached at the clinic of brother of applicant / complainant and they have sealed his clinic and took away cash of Rs. One lac and some documents and assaulted the applicant with leg and fists. Learned counsel has referred statement of complainant recorded under Section - 200 Cr.P.C. and of witnesses recorded under Section - 202 Cr.P.C. and submitted that a prima facie case was made out against opposite party no.2 and 3 but despite that the complaint of applicant was dismissed under Section - 203 Cr.P.C. Referring to facts of the matter, it was submitted that 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.
5. I have considered the 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 reads 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. 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 exist and 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, Criminal Procedure Code.
8. 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.
9. 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."
10. Considering above-stated position of law, in the instant matter perusal of record shows that the main allegation of applicant is that his brother Mithilesh Babu is running a clinic in the name of 'Aditi Integrated Pharma Clinic' and that on 30.12.2023 the opposite party no.2 / Deputy Chief Medical Officer and his driver have made a demand of Rs. 50,000/- from him and they have abused and threatened him. Thereafter on 03.01.2024 opposite party no.2 / Deputy Chief Medical Officer and opposite party no.3 / Chief Medical Officer, District - Kaushambi along with some police constables reached at the said clinic and sealed the same. They have also taken away an amount of Rs. one lac and some documents and abused and threatened the applicant. It appears from the impugned order that in fact a medical clinic was being run by applicant / his brother without any authority and the Chief Medical Officer has sealed the same and done proceedings against that clinic. The allegations levelled by the applicant appear highly improbable. There is nothing to show that applicant or his brother was authorized to run a medical clinic. Learned Magistrate has considered entire facts of the matter and complaint of the applicant was dismissed by a reasoned order. There is nothing to show that there has been any abuse of process of Court or miscarriage of justice. Considering allegations of complaint and statement of complainant and of witnesses and all attending facts, no case for interference by invoking inherent powers is made out. The application under Section - 528 BNSS lacks merits and thus, liable to be dismissed.
11. Accordingly, the application u/s 528 BNSS is dismissed.
Order Date :- 17.5.2025
S Rawat
