Court No. - 42
Case :- APPLICATION U/S 482 No. - 7291 of 2019 Applicant :- Smt. Fatma Alias Fatma Begum Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Umair Mahmood Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the impugned summoning order dated 4.8.2018 passed by the Judicial Magistrate, Court No. 1, Nagina, District Bijnor, in Complaint Case No. 617 of 2018, Smt. Kahkasha Vs. Mohd. Abid and others, as well as entire proceedings of above mentioned complaint case pending in the court of Judicial Magistrate 1st, Nagina, District Bijnor.
Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the records.
The submissions made by learned counsel for the applicant call for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The applicant has been summoned by the learned Magistrate after considering the evidence adduced by the complainant and his witnesses under sections 200 and 202 Cr.P.C.
In Fiona Shrikhande Vs. State of Maharashtra and another, AIR 2014 SC 957 Hon'ble Supreme Court has held as under:
The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint.
At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs.
State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and the recent being A.R.C.J. Vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348. Therefore, this Court does not deem it proper and cannot be persuaded to have a pre-trial before the actual trial begins. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge by moving a proper application for the said purpose before the trial court and they are free to make all the submissions in the said discharge application before the Trial Court including those which have been canvassed by him before this Court in this application.
In view of the above, the prayers for quashing the summoning order and the entire proceedings of the complaint case are refused.
At this juncture learned counsel for the applicant prayed that the applicant is ready to surrender before the court and to move bail application but the court below be directed to consider her bail application expeditiously in accordance with the law laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
Learned AGA has no objection against the aforesaid prayer.
As the law laid down in both the aforesaid cases, should be complied with in letter and spirit, by all courts, it is expected from the trial court that in case the applicant surrenders before it within 30 days from today and applies for bail it will decide her bail application in wake of the law laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
For a period of 30 days from today, which shall not be extended any further, no coercive action shall be taken against the applicant in the above mentioned complaint case.
With the aforesaid directions this application is finally disposed off.
Order Date :- 25.2.2019 / Pcl