Heard Mr. Sushil Kumar Chaturvedi, 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 07.02.2021 passed by Judicial Magistrate, Court No.1, Agra in Complaint Case No.2701741 of 2018, (Smt. Vimlesh Vs. Prem Singh and others), under Sections- 354, 324, 452, 427 I.P.C., Police Station- Fatehpur Sikari, District- Agra, as well as entire proceedings of above-mentioned complaint case, now pending in the court of Judicial Magistrate, Court No.1, Agra.
Learned counsel for applicants contends that an F.I.R. dated 10.09.2018 was lodged by Sahab Singh, brother of applicants-1 and 2, which was registered as Case Crime No.0489 of 2018, under Sections- 323, 344, 379, 447, 504 I.P.C., Police Station- Fatehpur Sikri, District- Agra. In the aforesaid F.I.R., four persons, namely, Uttam, Khemchandra, Vimlesh (complainant/opposite party-2) and Kusum have been nominated as named accused. On the aforesaid premise, it is thus contended that present criminal proceedings by way of above-mentioned complaint case have been engineered as a counter-blast to aforesaid criminal proceedings initiated by brother of applicants-1 and 2. It is next contended that impugned summoning order passed by court below is cryptic, inasmuch as, court below has not recorded its prima-facie satisfaction regarding veracity of allegations made in compliant in light of statement of complainant as recorded under Section 200 Cr.P.C. and that of his statement recorded under Section 202 Cr.P.C. Since no prima-facie satisfaction has been recorded by court below, no enquiry in terms of Section 203 Cr.P.C. has been conducted by court below. Summoning order passed by court below is cryptic and therefore cannot be sustained. Same is liable to be quashed by this Court. It is lastly contended that applicants are innocent. They have been falsely implicated in above-mentioned complaint case. Allegations made in complaint are false and concocted. Present criminal proceedings have been initiated by complainant/opposite party-2 with an ulterior motive. Consequently, same are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that from perusal of impugned summoning order dated 07.02.2021 passed by court below, it is apparent that concerned Magistrate has proceeded to summon applicants only after recording his prima-facie satisfaction regarding veracity of allegations made in complaint in the light of statement of complainant as recorded under Section 200 Cr.P.C. and that of his statement recorded under Section 202 Cr.P.C. Consequently, it cannot be said that concerned Magistrate has committed any irregularity or illegality in passing the impugned summoning order. Reliance has been also placed upon paragraph- 37 of the judgment of Supreme Court in Nupur Talwar Vs. C.B.I. and Others, 2012 (10) 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 inCahndra Deo vs. Prokash Chandra Bosealias 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 202has 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, ILR14 Cal 141. In all these cases, it has been held that the object of the provisions ofSection 202is 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 underSection 202is 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) ofSection 202itself, 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."
It is further contended that present application has been filed on the ground that present criminal proceedings have been engineered to wreak-vengeance. However, nothing has been brought on record to demonstrate that police report in terms of Section 173(2) Cr.P.C. which has been submitted in Case Crime No.0489 of 2018. In the absence of any document regarding above, plea urged by learned counsel for applicants regarding present criminal proceedings have not been engineered to wreak-vengeance cannot be considered.
When confronted with aforesaid, learned counsel for applicants could not overcome the same.
Having heard learned counsel for applicants, learned A.G.A. for Stateand 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 applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. 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 aforesaid 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 :- 25.8.2021 Saif