Court No. - 44
Case :- MATTERS UNDER ARTICLE 227 No. - 6446 of 2018 Petitioner :- Sunil Kumar Respondent :- State Of U.P. And Another Counsel for Petitioner :- Shrawan Dwivedi Counsel for Respondent :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Shrawan Dwivide, learned counsel for the petitioner, the learned A.G.A. for the State and Mr. Shikhar Trivedi, Advocate, who has appeared on behalf of the opposite party No.2 by filing his vakalatnama in Court today, which is taken on record.
This petition under Article 227 of Constitution of India has been filed challenging the summoning order dated 7.2.2018, passed by the Additional Chief Judicial Magistrate, Maharajganj in Complaint Case No. 3052 of 2017 (Jumman Ansari vs. Aftab and others), under sections 147, 323, 504, 506, 427, 379 IPC, P.S. Nichlaul, District Maharajganj as well as the entire proceedings of above mentioned complaint case.
From the record, it appears that petitioner had previously approached this Court by filing Criminal Misc. Writ Petition No. 14538 of 2011 (Sunil Kumar), which was disposed of finally by this Court vide order dated 29.7.2011. For ready reference, the order dated 29.7.2011 is reproduced hereunder:-
"Heard learned counsel for the petitioner and learned A.G.A. for the State.
This writ petition has been filed with a prayer to quash the order dated 6.6.2011 passed by Sessions Judge, Ramabai Nagar in criminal revision no.nil of 2011, Sunil Kumar Vs. State.
On a complaint filed by the petitioner, respondent no.5 was summoned to face trial under sections 352, 504 IPC. The revision filed by the petitioner has been dismissed. The complainant is a teacher. He has filed the complaint against Asst. Basic Shiksha Adhikari. After perusal of the record, I do not find any error or illegality in the order passed by the Magistrate as well as the order passed by learned Sessions Judge. The petitioner is at liberty to lead evidence in support of his claim and if on the evidence it is found by the trial court that offence under section 3 (1) (10) S.C./S.T. Act is made out, then, at that stage, the case may be committed to the Court of Sessions.
With these observations, the petition is disposed of. "
Pursuant to the aforesaid order, the petitioner filed an application dated 16.8..2017, which came to be rejected by means of the order dated 10.1.2018. While rejecting the aforesaid application, the concerned Magistrate recorded a categorical finding at internal page 4 of the order that from the evidence on record, no offence under Section 3 (1)(10) S.C./S.T Act can be said to have been committed. Dissatisfied with the order dated 10.1.2018, the petitioner preferred criminal revision before the Session Judge, Ramabai Nagar (Kanpur Dehat), which was registered as Criminal Revision No. 09 of 2018 (Sunil Kumar Vs. Mahesh Sharma). The aforesaid criminal revision also came to be dismissed vide order dated 13.7.2018. From the perusal of the order passed by the revisional court, it is explicitly clear that the revisional court has confirmed the finding recorded by the Magistrate, and further itself examined the entire material on the record and upon independent exercise undertaken by the revisional court, it came to a conclusion that the finding recorded by the revisional court can not be said to be illegal, perverse or erroneous. As such, the revisional court not only confirmed the order passed by the Magistrate, but also upon examination of the record, came to a conclusion, which was similar to one recorded by the Magistrate. Thus, both the courts below recorded a concurrent fact that no offence under Section 3 (1)(10) is made out. The finding of the fact recorded by the Courts below, could not be dislodged before me as perverse, illegal or erroneous or an outcome of the exercise of jurisdiction with material irregularity, resulting in miscarriage of justice.
In view of the above, no occasion arises before this court to entertain the present application. It is, accordingly, dismissed.
Order Date :- 19.9.2018 Arshad