Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 2495 of 2005 Petitioner :- Abdul Wahab And Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Mohd. Aslam Ansari Counsel for Respondent :- Govt. Advocate,Manoj Vashistha
Hon'ble Aniruddha Singh,J.
None is present on behalf of petitioners. Heard learned AGA and perused the record. The petition is being decided on merit.
This petition has been preferred by Abdul Wahab and seven others against State of U.P. and Smt. Nazma, opposite party No.2 challenging order dated 23.4.2004 passed by Chief Judicial Magistrate, Saharanpur in Case No. 1301/04, Police Station Gangoh, District Saharanpur whereby petitioners have been summoned under Sections 498-A, 405 IPC and 3/4 Dowry Prohibition Act and order dated 9.2.2005 passed by Additional Sessions Judge, Fast Track Court No. 1, Saharanpur in Criminal Revision No. 217 of 2004 dismissing the revision and confirming the summoning order dated 23.4.2004.
From perusal of record, it transpires that impugned summoning order was passed after recording statement of complainant under Section 200 Cr.P.C. and witnesses namely, P.W.-1 Baseer and P.W.-2 Bhoora under Section 202 Cr.P.C.
On the point of facts, both the Trial and revisional Court have given concurrent finding and view taken by both the Courts is plausible view. Hence no interference is called for in the impugned summoning order. Section 203 Cr.P.C. and 204 Cr.P.C. are quoted hereunder for ready reference.
"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. 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.
(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87."
According to Section 203 Cr.P.C., Magistrate can dismiss the complaint after recording statement of complainant and witnesses and result of inquiry or investigation. Magistrate has power under section 204 Cr.P.C. to issue summon or warrant.
Moreover, in the case of Jancy Nelson D'Souza v. Nel D' Souza, 2004 Crl 1690(1692)(Bom), Bombay High Court has held that at the time of taking cognizance of the complaint presented before a Magistrate, the Magistrate has to deal with the said complaint in view of the allegations made in the complaint itself and he has to find out whether, prima facie offence has been spelt out. At that stage it is not necessary for him to make a detailed enquiry touching niceties.
In the case of Jia Lal Sharma vs. State , 1982 Crl.J. 1913(Del) the Delhi High Court has held that for the issue of process against the accused it has to be only seen whether prima facie case has been made out.
In the case of Parsoon Kumar Srivastava vs. State of U.P., 1999 Crl. J 3375( All), this Court has held that where allegations made in the complaint prima facie disclose alleged offences, summoning order is justified.
In the case of Nupur Talwar vs. Central Bureau of Investigation, AIR 2012 SC 1921, Apex Court has held that at the time of issuing process, all that the Magistrate has to determine is whether the material placed before it is sufficient for proceeding against the accused. The term 'sufficient to proceed' is different and distinct from the terms 'sufficient to prove and establish guilt'. At the stage of issuing process, the Magistrate is not required to weigh the evidence meticulously as if it was the trial Court nor is he required to scrutinize the evidence by the same standard by which the trial Court scrutinizes the evidence at the stage of framing charge.
In the case of Anil Saran vs. State of Bihar, AIR 1996 SC 204, the Court has held that the defence open to the accused is not to be seen at the time of issuance of process.
In this case, summoning order has been passed in accordance with law. The petitioners have opportunity to place evidence before the Trial Court at appropriate stage.
The writ petition is dismissed.
Copy of this order be transmitted to the Court concerned immediately.
Order Date :- 17.9.2018 P.P.