Allahabad High Court
Deependra Kumar Verma And 3 Others vs The State Of U.P. Thru. Prin. Secy. Home ... on 8 May, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:27005
Court No. - 12
Case :- APPLICATION U/S 482 No. - 3721 of 2025
Applicant :- Deependra Kumar Verma And 3 Others
Opposite Party :- The State Of U.P. Thru. Prin. Secy. Home U.P. Lko. And Another
Counsel for Applicant :- Arun Kumar Saxena,Adarsh Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri Arun Kumar Saxena, learned counsel for the petitioners and the A.G.A. on behalf of the State.
2. In view of the proposed order notice to private respondents is dispensed with.
3. By means of the present petition under Section 482 Cr.P.C. read with Section 528 of BNSS, the petitioners have assailed the validity of the order dated 2.4.2025 passed by Chief Judicial Magistrate, Sitapur thereby summoning the petitioners in case No.267 of 2025 under Section 498-A, 302 IP.
4. It has been submitted that marriage of petitioner No.1 was solemnized with the deceased Rinki who is daughter of opposite party No.2 on 22.6.2004. It is further submitted that out of the said wedlock the couple had two children. It is further submitted that an application under Section 156 (3) Cr.P.C. was filed on 18.10.2021 with regard to the incident dated 22.9.2021 stating that the petitioners have committed murder of daughter of the complainant on 15.11.2021. Appropriate orders were passed by the Magistrate directing the police to register FIR and accordingly first information report was lodged on 3.1.2022. Investigation was carried out and after investigation final report was filed on 30.10.2022. Opposite party No.2 had filed protest application on 2.2.2023 and the Magistrate directed the same to be treated as complaint by his order dated 24.3.20223 and directed for recording statement under Sections 200 Cr.P.C. and after recording of the statement as per Section 202 Cr.P.C. and after considering the materiel available on record the Magistrate was not satisfied with regard to occurrence of cognizable offence and consequently rejected teh same vide order dated 9.7.2024.
5. The complainant being aggrieved by the order dated 9.7.2024 had preferred a revision which has been allowed by means of order dated 21.1.2025 setting aside the order of Magistrate dated 9.7.2024 and directing the Magistrate to pass fresh orders in accordance with law and also considering the direction of the revison court. It is in pursuance of the order of the dated 21.1.2025 that the impugned order dated 2.4.2025 has been passed summoning the petitioners.
6. Learned counsel for the petitioners submits that it is on the basis of the same material which was on record previously that the magistrate had declined to register the compliant fresh order of summoning has been passed. which is illegal and arbitrary.
7. Apart from the above, is also submitted that on the basis of statements under Sections 200 and 202 Cr. P.C., the Magistrate is duty bound to record statements of all the witnesses and in the present case the testimony of the Medical Officer and other witnesses was not recorded and consequently there is manifest error in the impugned order summoning the petitioners. It is further submitted that the impugned order would indicate non compliance of the same by the Magistrate and for the aforesaid reasons has assailed the summoning order dated 2.4.2025.
8. Learned AG.A., on the other hand, has opposed the petition. He submits that at the stage of summoning the Magistrate is duty bound to consider the statements and material available on record. A perusal of the order would indicate that he has duly considered the statements of 200 and 202 Cr.P.C. and duly considered the statement of the complainant Munna Lal as well as statement of Sawan Kumar. A perusal of the aforesaid statements clearly indicates that the deceased Rinki was done to death by the petitioners and clearly implication was made by the testimony of P.W-1 and 2 and consequently the satisfaction has been duly recorded by the Magistrate stating that Rinki was done to death by the petitioners and has supported the version of the prosecution and, as such, has prayed for dismissal of the petition.
9. I have heard the rival contention and perused the record.
10. It is noticed that there is no dispute with regard to the fact that deceased Rinki Devi who was wife of petitioner No.1 had died on 22.9.2021. It was the case of the complainant that she was done to death by repeatedly putting her head in a water tank and even in the post mortem report the cause of death has been shown as asphyxia due to anti mortem injury due to drowning though previously by order dated 9.7.2024 the Magistrate after considering the material had declined to register the complaint but after interference of the revisional court the impugned order has been passed and the petitioners have been summoned. While passing the impugned order the Magistrate has duly considered the statements of Munna Lal stating that the deceased was married to petitioner No.1 in 2004 and after her marriage she was continuously mentally and physically harassed and she used to inform her parents about this incident. He has stated that she has been done to death on 22.9.2021 after pushing her into the well. Statement of Sarwan Kumar has also been considered which has been recorded under Section 202 of Cr.P.C. The post mortem report indicates that she had died due to ante mortem drowning. The statements have been duly considered and accordingly the trial court was of the prima facie view and accordingly recorded his satisfaction with regard to implication of the petitioners under Sections 498A and 302 IPC.
11. The main ground raised by the petitioners that all the witnesses have not been examined and their statement has not been recorded and accordingly the impugned order is illegal and arbitrary and deserves to be set aside. We also take notice of the judgment of Supreme Court in the case of Shivjee Singh vs Nagendra Tiwary & Ors, 2010 (7) SCC 578 decided on 6 July, 2010 where in para 9 it has been held:-
"11.Section 202(1) empowers the Magistrate to postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person whom he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By amending Act 25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area beyond the territorial jurisdiction of the Magistrate concerned. Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session or where the complaint has not been made by a court unless the complainant and the witnesses have been examined on oath under Section 200.
12.Under Section 202(2) the Magistrate making an inquiry under sub-section (1) can take evidence of the witnesses on oath. If the Magistrate thinks that the offence complained of is triable exclusively by the Court of Session then in terms of the proviso to Section 202, he is required to call upon the complainant to produce all his witnesses and examine them on oath."
12. Considering the legal proposition rendered by the Supreme Court it is clear that there is no dispute that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process. The Supreme Court has also considered that the use of the word `shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused.
13. Accordingly, we do not find any merit in the submission made by learned counsel for the petitioners that examination of all the witnesses is necessary before issuing summoning order. Apart from the above, we have also perused the statements and the report of post mortem as well as Panchnanma which have been placed on record and find that after perusal of these evidences the Magistrate has recorded prima facie satisfaction and has duly considered all the material on record prior to passing the impugned order, hence, the same does not require any interference by this Court.
14. In view of the reasons aforesaid, no ground for interference is made out. The the petition is devoid of merits and is accordingly dismissed.
(Alok Mathur, J.)
Order Date :- 8.5.2025
RKM.
