Court No. - 83
Case :- APPLICATION U/S 482 No. - 13516 of 2021 Applicant :- Kalimuddin And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shailendra Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Shailendra Kumar Tripathi, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging Summoning Order dated 27.02.2020 passed by Special Judge (S.C./S.T. Act), Kannauj in Complaint Case No.33 of 2019, (Sita Devi Vs. Kalimuddin and Others), under Sections- 147, 323, 324, 354, 504, 506 I.P.C. and Sections- 3(1) (r) and 3(1)(w) S.C./S.T. Act, Police Station- Tirwa, District- Kannauj, as well as entire proceedings of above-mentioned complaint case.
Learned counsel for applicants contends that applicants are innocent. They have been falsely implicated in above- mentioned complaint case. Allegation made in complaint are false and concocted. It is then contended that a civil dispute between parties is already pending. In support of above, learned counsel for applicants has invited attention of Court to the plaint of Original Suit No.45 of 2019 (Jaleel Khan Vs. Jageshwar and Others) which is on record as Annexure-6 to the affidavit. On the basis of above, it is urged by learned counsel for applicants that a purely civil dispute between parties has been dragged into criminal litigation. None of the ingredients of the charging sections are made out. Occurrence in question has not taken place in public view. Hence, applicants cannot be prosecuted for an offence under Sections- 3(1)(r) and 3(1)(w) S.C./S.T. Act. It is thus urged that present criminal proceedings have been initiated on account of an oblique and ulterior motive only to get mileage in the civil suit. On the aforesaid premise, it is thus urged that present criminal proceedings are not only malicious but also an abuse of process of Court. Consequently, same are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. has invited attention of Court to the impugned summoning order passed by court below. On the basis of above, it is urged by learned A.G.A. that court below has proceeded to consider the veracity of allegations made in the complaint. On the basis of statement of complainant as recorded under Section 200 Cr.P.C. and that of the witnesses under Sections 202 Cr.P.C., court below has formed prima-facie satisfaction and only thereafter summoned the applicants by means of impugned summoning order. Impugned summoning order passed by court below is neither cryptic nor illegal. Consequently, same is not liable to be interfered with. Learned A.G.A. has also invited attention of Court to the observations made in paragraph- 37 of the judgment in Nupur Talwar Vs. C.B.I. and another, (2012) 11 SCC 465, wherein following has been observed.
"37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo vs. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under :
"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry underSection 202 has been considered. Amongst those decisions are : Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36; Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125; Emperor v.
J.A. Finan, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR 14 Cal 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."
When confronted with above, learned counsel for applicants could not overcome the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicants. All the submissions made at the Bar relate to the disputed defence of the applicants, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.P.C. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence to record a finding one way or the other. Such an exercise can be undertaken only by trial court upon trial of above-mentioned complaint case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
In view of above, present application fails and is liable to be dismissed.
It is accordingly, dismissed.
Order Date :- 27.9.2021 Saif