Allahabad High Court
Arjun Tiwari vs State Of U.P. And Another on 7 January, 2021
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 80 Case :- APPLICATION U/S 482 No. - 72 of 2021 Applicant :- Arjun Tiwari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Mohan Pandey Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 09.11.2020 passed by Metropolitan Magistrate, Room No.1, Kanpur Nagar in Complaint Case No. 9976 of 2019 (Arjun Tiwari Vs. Bheem Tiwari) under Sections 420, 467, 468, 471, 448, 323, 506 of IPC, Police Station Chakeri, District Kanpur Nagar, whereby the complaint of applicant has been dismissed under Section 203 Cr.P.C.
2. Heard learned counsel for applicant and learned AGA for State.
3. It has been argued by learned counsel for applicant that applicant and respondent no.2 are real brothers and that their father has executed a registered Will on 25.09.2012 in favour of applicant and respondent no.2 but thereafter, respondent no.2 was creating hindrance in possession of applicant thus, the applicant has filed a Civil Suit O.S. No. 1049 of 2016 before the Civil Court. It was submitted that in that civil suit the respondent no.2 has filed a forged Will dated 24.11.2012, whereas the father of parties had never executed any such Will. At the time of alleged Will, the father of applicant and respondent no.2 was having a plaster in right hand and he was unable to make signature on any document. Further, the signature of genuine and forged Will are different, which also shows that Will dated 24.11.2012 is forged one. Learned counsel submitted that in view of above stated facts and circumstances, a prima facie case was made out against respondent no.2 but despite that the court below has dismissed the protest petition/complaint of applicant under Section 203 Cr.P.C. vide impugned order dated 09.11.2020. It has been further submitted that the impugned order is against facts and law and thus, liable to be quashed.
4. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order.
5. Perusal of record shows that initially the applicant has lodged a first information report against respondent no.2 by moving an application under Section 156(3) Cr.P.C. but after investigation police have submitted final report. Applicant has preferred a protest petition against said final report, which was registered as a complaint case and thereafter, statement of informant was recorded under Section 200 Cr.P.C. and thereafter statement of one Vishvmohan Tiwari and Avdhesh Kumar were recorded under Section 202 Cr.P.C. and after that the said complaint was dismissed vide impugned order dated 09.11.2020. At this stage it would be expedient to go through the provisions as enunciated under Sections 203 and 204 Cr.P.C. which reads as follows :-
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."
6. Thus, 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., the Magistrate is of the opinion that there is no sufficient ground for proceeding exists and he may dismiss the complaint.
7. While examining the scope of Section 203 Cr.P.C. the Hon'ble Supreme Court in the case of Debendra Nath Battacharya v. The State of West Bengal and another, AIR 1972 SC 1607 in paragraphs 7 and 8 has held as under :
"7. It has to be remembered that an order of dismissal of a complaint under Section 203, Criminal Procedure Code has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceedings further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show 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. Keeping the aforesaid legal position in view, in the instant matter, it is apparent that applicant and respondent no.2 are real brothers and that as per version of applicant, the alleged forged Will dated 24.11.2012 has been filed by respondent no.2 in Civil Suit O.S. No. 1049 of 2016 and thus, the applicant may approach the concerned Civil Court for initiation of proceedings under Section 340 Cr.P.C. in accordance with law. Further, the court below has also found that the applicant has not produced any documentary medical evidence that at the time of alleged Will, the hand of the father of applicant was lying plastered and he was not in a position to make signature on any document. Essentially the matter appears of civil nature and that civil suit is pending between the parties. The court below has made detailed discussion of entire facts and evidence and came to conclusion that there was no sufficient basis for summoning of respondent no.2 and the complaint was dismissed under Section 203 Cr.P.C. After perusing entire record and evidence, it cannot be said that findings of the court below are not based on evidence on record. There is nothing to indicate that there has been any abuse of process of Court or there has been a miscarriage of justice so as to warrant any interference by this Court under Section 482 Cr.P.C.
11. The application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.
Order Date :- 7.1.2021 Mohit