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Suresh @ Sudesh & Ors. vs State Of U.P. Thru. Secy. Home … on 5 September, 2019


?Court No. – 12

Case :- U/S 482/378/407 No. – 6244 of 2019

Applicant :- Suresh @ Sudesh Ors.

Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Anr.

Counsel for Applicant :- Vijay Kumar

Counsel for Opposite Party :- G.A.

Hon’ble Mrs. Rekha Dikshit,J.

Heard learned counsel for the petitioners, learned AGA and perused the record.

This petition has been filed with the prayer to quash the impugned summoning order dated 31.10.2018 and entire criminal proceeding of Complaint Case No. 2519 of 2014 under Sectionsections 498A,Section323,Section406 IPC and section 3/4 D.P.Act, P.S. Arwal, District Hardoi pending in the court of Additional Chief Judical Magistrate, Court N.1, Hadoi.

Learned counsel for the petitioners has submitted that there is no independent witness of the incident and the petitioners have not committed any offence and he has falsely been implicated in this case. Lastly, learned counsel for the petitioners has submitted that petitioners are ready to surrender before the court below and some protection may be granted to them.

Learned A.G.A., on the other hand, argued that the order, summoning the accused-applicants, has been passed by the Magistrate concerned on the basis of the evidence recorded under Sections 200 and 202 Cr.P.C. and there is nothing illegal in it.

In the case of SectionNirmaljit Singh Hoon v. State of West Bengal and another, 1973 (10) ACC 181 (SC) while considering the scheme of Sectionsections 200, Section203 Cr.P.C., it has been held by the Hon’ble Apex Court that Section 203 Cr.P.C. does not say that a regular trial for adjudging the truth or otherwise of the accusation made against the accused should take place at that stage. 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 no sufficient ground for proceeding, he may dismiss the complaint.

In the case of SectionChandra Deo Singh v. Prakash Chandra Bose, I964 (1) SCR 693, the Hon’ble Apex Court held that at the stage of enquiry under Section 202 Cr.P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of SectionSmt. Nagwwa v. Veeranna Shivalingappa Konjalgi and ohers, 1976 (1) ACC 225 (S.C.) while considering the scope of enquiry under Section 202 Cr.P.C., the Hon’ble Apex Court has held that it is extremely limited only to the ascertainment of truth or falsehood of the allegations made in the complaint (a) on the basis of 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 complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value made 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.

In the case of SectionS.W. Palanitkar and others vs. State of Bihar and another, 2002 (44) ACC 168 (S.C.), the Hon’ble Apex Court has held that at the stage of passing order under Section 203 Cr.P.C. searching sufficient ground to convict is not necessary.

In the present case, the Magistrate concerned, after considering the evidence recorded under Sections 200 and Section202 Cr.P.C. has concluded that prima facie a case is made out against the applicants and as such the applicants have been summoned as accused. A perusal of the aforesaid statements reveals that the applicants have, prima facie, committed offence and in these circumstances it cannot be held that the Magistrate has committed any illegality or impropriety in passing the impugned order.

In view of the above, there is no reason to interfere with the progress of the proceedings. Moreover, the applicants have right to be discharged under Sections 239/Section227/Section228/Section245 Cr.P.C. as the case may be by making a proper application for the said purpose containing therein their submissions with regard to their discharge.

However, in this matter, after enquiry, the Magistrate has found a prima-facie case against the accused persons. At this stage there is no occasion to look into the question, whether the charge ultimately can be substantiated or not since that would be a subject matter of trial. No substantial ground has been made out which may justify interference by this Court under Section 482 Cr.P.C. From perusal of the record, it cannot be said that the cognizable offence is not made out against the petitioners.

However, learned lower court is directed that if the petitioners Suresh @ Sudesh, Udhan Singh, Smt. Guddi, Umesh and Brijesh surrender before the court below within four weeks from today and move application for bail, the same shall be considered and disposed of in the light of the judgment, passed by the 7 Judges’ Bench of this Court in SectionAmarawati and another vs. State of U.P., 2005 Cr.L.J. 755, as approved by the Apex Court in SectionLal Kamlendra Pratap Singh vs. State of U.P., (2009) 4 SCC 437 in Criminal Appeal No. 538 of 2009 (SC) dated 23.3.2009, expeditiously.

Till then, no coercive action shall be taken against the petitioners.

It is made clear that in no case the aforesaid period shall be extended and no excuse shall be entertained.

After expiry of the aforesaid period, if the petitioners have not surrendered, then the authorities concerned shall have full liberty to take action against them in accordance with law.

With the above observations, the petition is disposed of.

Order Date :- 5.9.2019




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