Allahabad High Court
Hridya Ram vs The State Of U.P And Ors. on 14 November, 2019
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- U/S 482/378/407 No. - 4696 of 2014 Applicant :- Hridya Ram Opposite Party :- The State Of U.P And Ors. Counsel for Applicant :- Alok Srivastava,Vivek Kumar Pandey Counsel for Opposite Party :- Govt. Advocate,Arvind Kumar Shukla,Gaurav Saxena,Lalla Chauhan,Neeraj Kumar Saxena, Rishi Saxena Hon'ble Dinesh Kumar Singh,J.
1. Heard learned counsel for the parties and perused the record.
2. This petition under Section 482 CrPC seeks quashing of order dated 15.09.2014 passed by the Additional Sessions Judge, Court No. 1, Gonda in Criminal Revision No. 564 of 2013 'Sahab Deen and others Vs. Hridya Ram and another' whereby the revisional Court has set-aside the order dated dated 20.07.2013 whereby the learned Magistrate took cognizance and summoned the respondents under Sections 201 and 306 IPC.
3. It appears that the final report was submitted in FIR No.145 of 2012, under Sections 306 and 201 IPC, Police Station Nawabganj, District Gonda, registered on 05.09.2012. Against submission of the final report, the petitioner-complainant filed a protest petition, which was registered as complaint case. Along with the protest petition, the complainant cited six witnesses. The trial Court, after recording statement of complainant under Section 200 CrPC and four witnesses under Sections 202 CrPC and having found prima facie case against the accused, passed the order of taking cognizance and summoning them. The learned revisional Court has set-aside the order of the learned Magistrate only on the ground that under sub-section (2) of Section 202 CrPC, it was incumbent upon the learned Magistrate to record statement of all the witnesses, who are cited in the complaint. Since the learned Magistrate did not record statement of all the six witnesses, the order passed by the learned Magistrate dated 20.07.2013 was unsustainable, therefore, the revisional Court has set-aside the order passed by the learned Magistrate, and remanded the matter back to the learned Magistrate, directing therein to record statement of all the witnesses, and then form an opinion whether there is prima face case for taking cognizance and summoning the accused.
4. Learned counsel for the petitioner submits that the approach of the revisional Court is improper and incorrect. It is for the Court to record its satisfaction and find out a prima facie case for summoning the accused. Examination of all the witnesses to consider the case for forming a prima facie opinion is not necessary. In the present case, if the learned Magistrate had found prima facie case after examining four witnesses then it was not incumbent upon him to record statement of all the six witnesses. The learned counsel has placed reliance on the judgment of the Supreme Court in Shivjee Singh Vs. Nagendra Tiwary and others [2010(3)JIC 66 (SC].
5. On the other hand, Mr. Lalla Chauhan, representing private respondents, submits that it was incumbent upon the learned Magistrate under sub-section 2 of Section 202 CrPC to examine all the witnesses cited with the complaint. Since the learned Magistrate only recorded statement of four witnesses, the order passed by the learned Magistrate was unsustainable and, therefore, the revisional Court has correctly set-aside the order, and remanded the matter back to the learned Magistrate.He has further submitted that the complainant/petitioner is not prejudiced in any manner. The matter has been only remanded back and, therefore, this Court, in exercise of its jurisdiction under Section 482 CrPC, should not interfere with the impugned order passed by the revisional Court.
6. The precise question, whether the examination of all the witnesses cited in the complaint, is sine-quo-none for taking cognizance by Magistrate has been exclusively dealt with by the Supreme Court in Shivjee Singh Vs. Nagendra Tiwary and others [2010(3)JIC 66 (SC], in paragraphs 16 and 32 of which, the Supreme Court has held as under:-
"16. The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process.
32. As a sequel to the above discussions, we hold 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 the proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of the proviso to Section 202(2)."
7. In view of the law laid down by the Supreme Court in Shivjee Singh Vs. Nagendra Tiwary and others (supra), the impugned order passed by the revisional Court is unsustainable. Thus, this petition is allowed, and the impugned order dated 15.09.2014 passed by the learned Sessions Judge, Court No. 1, Gonda in Criminal Revision No.564 of 2013 'Sahab Deen and others Vs. Hridya Ram and another, is set-aside. The learned Magistrate is directed to proceed with the case, and decide the same expeditiously, in accordance with law.
[Dinesh Kumar Singh,J.] Order Date :- 14.11.2019 MVS/-