Allahabad High Court
Sarvesh Kumar Srivastava vs The State Of U.P Thru Court Of Iind Addl ... on 17 July, 2019
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 Case :- U/S 482/378/407 No. - 715 of 2011 Applicant :- Sarvesh Kumar Srivastava Opposite Party :- The State Of U.P Thru Court Of Iind Addl D.M., And Another Counsel for Applicant :- K.G Srivastava,Rakesh Chandra Rastogi Counsel for Opposite Party :- Govt. Advocate Hon'ble Chandra Dhari Singh,J.
Called out in the revised list. Neither learned counsel for the petitioner has appeared to argue the case nor there is any request for adjournment of the case.
The matter is pending since 2011. Eight years have gone by. This court has no option but to decide the petition on merits with the assistance of learned A.G.A.
This petition has been filed with the prayer to quash the summoning order dated 29.05.2009 passed by the Judicial Magistrate-II, Faizabad in Complaint Case No.869 of 2010 (Ram Nath Vs. Akhilesh Kumar) under sections 323, 504, 506 IPC and 3(1)(X) SC/ST, Police Station Kotwali Nagar, District Faizabad as well as the proceeding of the aforesaid complaint.
Brief facts of the case are that the opposite party no.2 borrowed Rs.10,000/- but he did not return after several requests and on making tight demand to return the money, he moved false application under section 156(3) Cr.P.C. of beating/abusing and using of caste related words to the court and the learned Magistrate treated the said application as Complaint Case. The statements were recorded under sections 200 & 202 Cr.P.C. and the court below has passed the order of summoning to the petitioner.
It has been stated in the petition that nothing has been held as stated in the complaint/statements under sections 200 and 202 Cr.P.C. but it is only misuse of SC/ST Act as per conspiracy of the opposite party no.2. It has also been stated in the petition that the learned Magistrate did not comply the directives of Hon'ble Apex Court for going through with the records/statements given by the complainant.
Learned A.G.A. argued that the order, summoning the accused-applicant, 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 Nirmaljit Singh Hoon v. State of West Bengal and another, 1973 (10) ACC 181 (SC) while considering the scheme of sections 200, 203 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 Chandra 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 Smt. 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 questin 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 issung 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 S.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 202 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 239/227/228/245 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 person. 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 petitioner.
The petition is dismissed.
Order Date :- 17.7.2019 VNP/-