Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 6713 of 2005 Petitioner :- Bhagwati Prasad Pandey and others Respondent :- State Of U.P. And Others Counsel for Petitioner :- K.K. Dwivedi Counsel for Respondent :- Govt. Advocate,Manvendra Singh
Hon'ble Aniruddha Singh,J.
Heard Sri K.K.Dwivedi, learned counsel appearing for the petitioners and learned A.G.A. on behalf of the State.
This writ petition has been preferred by Bhagwati Prasad Pandey and five others against Shashi Kala, respondent no.3, Station House Officer, respondent no.2 and State of U.P. respondent no.1, challenging the order dated 06.01.2005 passed by Additional Chief Judicial Magistrate, Court No.11, Fatehpur in Complaint Case No.737 of 2003 (Shashi Kala vs. Bhagwati Prasad Pandey and others) whereby revisionists were summoned under sections 323, 504, 325, 506 & 149/384 I.P.C. and Criminal Revision No.60 of 2005 was dismissed.
Learned counsel for the petitioners submitted that order passed by the court concerned is illegal, arbitrary, perverse, without application of mind and against fact and law. Non-bailable warrant was issued against the petitioners on the basis of complaint lodged by respondent no.3 Shashi Kala.
Learned A.G.A submitted that the impugned order was passed in legal way and after considering the evidence on record.
From perusal of record it appears that statement of complainant Shashi Kala under section 200 and statements of P.W.1 Satyanarain and P.W.-2 Santosh Kumar were recorded under section 202 Cr.P.C. and after perusal of record, the accused was summoned and revision was dismissed.
On the point of fact, both the courts below have recorded the concurrent finding of fact, hence, this Court is not supposed to interfere with the findings of fact arrived at by the learned courts below.
In this context, it is relevant to mention the provision of Sections 203 and 204 Cr.P.C. which are quoted here-in- under:-
203. 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.
204. Issue of process.-- (1) If in the opinion of a Magistrate taking cognizance of 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."
It is very clear that in summoning order only prima-facie evidence has to be considered. On this point Section 204 Cr.P.C is relevant and is quoted as above.
From perusal of Section 204 Cr.P.C., there is only one condition which is that if in the opinion of a magistrate, there is sufficient ground for proceeding against the accused and prima-facie finds that there is sufficient material to summon the accused and magistrate has power to issue non-bailable warrant in warrant trial cases.
However, petitioner has right to move discharge application before the court concerned at appropriate stage.
Having considered the submissions of learned counsel for the petitioner and learned AGA, this Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present writ petition lacks merit and is liable to be dismissed.
The writ petition is accordingly dismissed.
However, it is provided that if the bail has not been obtained as yet, the petitioner may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application of the petitioner in the light of the judgment of this court in the case of Brahm Singh and Others vs. State of U.P. and others reported in 2016(7) ADJ 151.
Order Date :- 5.9.2018/SKD