Court No. - 44
Case :- APPLICATION U/S 482 No. - 23182 of 2018 Applicant :- Rahul Kumar And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Chandra Pal Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Chandra Pal Singh, learned counsel for the applicants, and the learned A.G.A. for the State.
Learned counsel for the applicants is permitted to correct the prayer clause of the present application by specifically mentioning the date of the summoning order.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 8.11.2017, passed by the Additional Chief Judicial Magistrate-I, Bijnore in Complaint Case No. 1474 of 2017(Arun Kumar Vs. Rahul and Others), under Sections 451, 323, 504, 506 IPC, P.S. Kotwali Shahar, District Bijnore as well as the entire proceedings of the aforesaid complaint case.
The above mentioned application came up for admission on 13.7.2018 and the following orders were passed:-
"As prayed by the learned counsel for the applicants, put up this case as a fresh case on 27.7.2018.
In the meantime, supplementary affidavit may be filed categorically stating therein whether the complainant has filed his list of witnesses before the Court below and also date on which the said list of witnesses was filed, if any."
In compliance of the order dated 13.7.2018, learned counsel for the applicants has filed a supplementary affidavit in Court today, which is taken on record.
A categorical averment has been made in paragraph 4 of the supplementary affidavit that the complainant has not supplied the list of prosecution witnesses before the issuance of the summons to the applicants.
Learned counsel for the applicant submits that in the present case the process has been issued against the applicants, even though the list of witnesses has not been supplied by the complainant before the court below. In support of the aforesaid submission, reliance is placed upon the judgement of this court in the case of Dinesh Kumar Vs. S. Narain, reported in 2014 Law Suit (All) 2116, which reads as under:
"Case called out in the revised list. None is present on behalf of revisionist and opposite party no. 1.
Learned A.G.A. is present.
This revision has been preferred against order dated 04.01.1990 passed by Xth Additional Sessions Judge, Kanpur Nagar, in criminal revision no. 42 of 1989 whereby the revision of opposite part no. 1 was allowed and the summoning order dated 25.02.1989 passed by Additional Chief Metropolitan Magistrate-II, Kanpur Nagar in complaint case no. 296 of 1989, under Section 498 I.P.C. was set aside.
Brief facts are that complaint was filed before learned Magistrate under Section 498 I.P.C. with the allegation that opposite party no. 1 and three other persons took away the legally wedded wife of revisionist from her legal guardianship with intention to get her married with some other person. Learned Magistrate has examined the complainant under Section 200 Cr.P.C and in an inquiry under Section 202 Cr.P.C, the witnesses were examined. After that, learned lower court concluded that there are sufficient ground to proceed under Section 498 I.P.C. against the accused 2, 3 and 4 and summoned them.
Feeling aggrieved the opposite party no. 1 filed revision bearing no. 42 of 1989 which was allowed on 04.01.1990 and summoning order dated 25.02.1989 was set aside.
Learned revisional court allowed the revision on the ground that the learned lower court had failed to comply with the mandatory provisions under Section 204(2) Cr.P.C. which envisages a pre condition of the list of witnesses before summoning the accused persons.
It appears that the revisional court misread the provision of Section 204 Cr.P.C.
The provisions of Section 204 Cr.P.C. reads as follows:-
"(1) If in the opinion of a Magistrate taking cognizance of an 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.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87."
Thus according to Section 204(2) Cr.P.C. the summon of witnesses or warrant shall only be issued when the list of prosecution witnesses has been filed. This does not mean that the accused cannot be summoned before the list filed but it means that the process of summon or warrant shall be issued when the list of prosecution witnesses have been filed.
Accordingly the revision is hereby allowed and the order dated 04.01.1990 passed by Xth Additional Sessions Judge, Kanpur Nagar, in criminal revision no. 42 of 1989 is set aside. Learned Magistrate to proceed with the case in accordance with law."
In veiw of the reasoning recorded in the order dated 21.7.2014 in the Case of Dinesh Kumar (Supra), the summoning order passed by the Court below, cannot be sustained. Accordingly, the same is set aside. The Magistrate shall proceed with the case, in accordance with law.
With the aforesaid direction, the present application is allowed.
Order Date :- 27.7.2018 Arshad