Court No. - 52
Case :- APPLICATION U/S 482 No. - 12611 of 2004 Applicant :- Sanjay Pathak And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Satya Dheer Singh Jadaun,Smt. Sushila Jadaun Counsel for Opposite Party :- Govt. Advocate,Manish Tandon
Hon'ble Yashwant Varma,J.
1. Heard learned counsel for the applicants and the learned AGA.
2. This petition impugns the orders dated 3 November 1999 and 15 November 1999. In terms of the first order, the revisional court has interfered with the order passed by the Magistrate rejecting an application made under Section 156 (3) Cr.P.C. The revisional court has, while setting aside the said order, noted that prima facie and on the basis of the allegations made in the complaint and statements recorded under Section 200 & 202 Cr.P.C., the commission of offences was evidenced. In view of the said conclusion it has faulted the Magistrate and held that at the stage of taking cognizance, he must only be prima facie satisfied that an offence has been committed. The revisonal Court has ultimately and upon arriving at such a conclusion remanded the matter back to the Magistrate with the direction that the applicants be summoned. Pursuant to the said order, the Magistrate in fact summoned the applicants for commission of offences under Sections 323, 504, 506, 420 and 406 IPC in terms of the order dated 15 November 1999.
3. Learned counsel for the applicants has contended that the revisional court has clearly committed a manifest illegality since it proceeded to dispose of the revision without putting the applicants to notice. Learned counsel then contends that the revisional court had clearly deprived the Magistrate of his discretion in light of the peremptory language in which the order of remand was framed. According to him, the terms of the remand left no discretion in the Magistrate who had no option but to proceed against the applicants and issue summons. In support of his submission, reliance has been placed upon a decision of the Supreme Court in Raghu Raj Singh Rousha Vs. M/s. Shivam Sundaram Promoters (P) Ltd1.
4. The Court notes that initially the Magistrate had rejected the application under Section 156 (3) Cr.P.C. by holding that no medical report or proof of examination was filed. He additionally alluded to the existence of a civil dispute inter partes. It was on this basis that the initial application under Section 156 (3) Cr.P.C. came to be dismissed. It was this very order, which was challenged by the opposite party in the revision.
5. In the considered view of this Court, the primary issue now and at this stage is as to whether there was sufficient material for the Magistrate to have summoned the revisionists for the commission of the offences as alleged. Insofar as the contention with regard to direction framed by the revisional court is concerned, suffice it to note that it had independently come to hold that a case for summoning the 1 2009 (65) ACC 629 applicants was prima facie and clearly made out. In view thereof, this Court finds no fault on the part of the revisional court insofar as it directed the Magistrate to summon the applicants. This since once it had formed an opinion itself that a prima facie commission of offences is evidenced, there was no occasion for such an enquiry being initiated or undertaken by the Magistrate himself all over again. Insofar as the submission of the learned counsel with respect to lack of notice at the stage of revision is concerned, the Court notes that the said issue pails into insignificance once this Court is satisfied that the revisional court committed no illegality in coming to the conclusion that there did exist prim facie material warranting the summoning of the applicants. It is relevant to note that learned counsel did not and could not establish any error in the findings returned by the revisional court with regard to the existence of a prima facie case.
6. Consequently, the application lacks merit and is accordingly dismissed.
Order Date: - 26.07.2018 (Yashwant Varma, J.) nethra