Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 8898 of 2005 Petitioner :- Bachcha Singh And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- R.M. Singh,Arun Kumar Singh,Bachcha Singh Counsel for Respondent :- Govt. Advocate,Bishram Tewari
Hon'ble Aniruddha Singh,J.
1- Heard Sri Bachcha Singh, learned counsel for the petitioners, Sri Upendra Kumar Tiwari, holding brief of Sri Bishram Tewari, learned counsel for respondent nos. 4 to 8, learned A.G.A. for the State respondents and perused the record.
2- This writ petition has been filed by the petitioners challenging the order dated 6.7.2005 and 2.2.2005 passed by Chief Judicial Magistrate, Ballia and 1st Additional Sessions Judge, Court No.1, Ballia whereby the application of the petitioners under Section 195(1) was rejected and against which criminal revision no. 75 of 2005 was filed which was dismissed.
3- In nutshell, the facts of the case are that a case was registered against Daya Shankar and Ram Das Sharma under Sections 419, 420, 467, 468, 471 and 120B I.P.C. and charge-sheet was submitted and recognizance was taken. Non bailable warrant was issued. Against that order, one application was moved by accused Mukteshwar Pathak, under Sections 195(I) Cr.P.C. that was dismissed vide order dated 2.2.2005. Against that order revision was filed and that was dismissed. Hence, this writ petition.
4- From perusal of the record, it transpires that after investigation by the Investigating Agency, the charge-sheet was submitted and cognizance was taken and the application moved by the accused was rejected on the ground that the application was barred by Section 362 Cr.P.C. and revision was also dismissed on this very ground.
5- Learned counsel for the petitioners submitted that this case is of civil in nature, but from perusal of the record, it transpires that prima, facie, evidence was found in investigation against the petitioner.
6- In the case of Swarn Anand v. Chief Judicial Magistrate, 1977 Cr.L.J. 355 (All), this Court has held that the expression "in the opinion of a Magistrate" means that the Magistrate has to merely form an opinion as to the sufficiency of grounds for proceeding against the accused persons. It does not require him to record any reasons for his so doing.
7- In the case of Anil Saran v. State of Bihar, AIR 1996 SC 204, the Apex court has held that the defence open to the accused is not to be seen at the time of issuance of process.
8- In the case of Ramesh Kumar v. Sushila Srivastava, 1997 Cr.L.J. 282 (284)(Raj), the Court has held that an order issuing process cannot be set aside on detail appreciation of evidence even if different view is possible.
9- In writ petition, it will not be proper to decide issues relating to fact which has to be adjudicated by the trial court/competent court. The Court finds that issue raised herein by the learned counsel for the petitioners and the documents adduced along with writ petition, may raise the issue and adduce the documents before the court below at the time of framing charges.
10- In view of the discussions made above and as per settled principles of law, at the time of taking cognizance of the offence and issuing summoning order the court is not required to give elaborate reasons describing the sufficient ground for taking cognizance or issuing summoning order of the offence.
11- In view of the discussions made above, I find that learned counsel for the petitioners have failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order of summoning the petitioners and there is no sufficient ground for interfering with or setting it aside. The view taken by the trial court as well as revisional court is plausible.
12- The writ petition is of the year 2005 and no useful purpose would be served in keeping the writ petition pending.
13- The criminal writ petition is devoid of merits and is liable to be dismissed.
14- The criminal writ petition is accordingly dismissed.
15- Stay order, if any, stands vacated.
16- Copy of the order be transmitted to the court concerned to proceed in accordance with law.
Order Date :- 12.9.2018/OP