Court No. - 73
Case :- CRIMINAL REVISION No. - 15 of 2019 Revisionist :- Suresh Babu Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Rajrshi Gupta Counsel for Opposite Party :- G.A.,Sujan Singh
Hon'ble Om Prakash-VII,J.
Present Criminal Revision has been filed with the prayer to set aside the impugned order dated 7.12.2018 passed by the Sessions Judge, Auraiya in Criminal Revision No. 43 of 2018 arising out of complaint case no. 1154 of 2016, under Sections 420, 467, 468 IPC. Further prayer has been made to stay the operation and effect of the aforesaid impugned order.
Heard Sri Rajrshi Gupta, learned counsel for the revisionist, Sri Hitesh Pachori, learned Advocate holding brief of Sri Sujan Singh, learned counsel for the informant and learned A.G.A.
Submission of learned counsel appearing for the revisionist is that although revision is not admitted yet all the formalities for hearing on the merits have been fulfilled. Learned counsel appearing for both the side are agree to decide the revision on merits at this stage itself.
Submission of learned counsel for the revisionist is that initially one application under Section 156 (3) Cr.P.C. was moved which was treated as complaint and evidence was recorded. Thereafter summoning order was passed on 9.5.2018 against the opposite party no. 2 to 4. It is also argued that opposite party no. 2 to 4 approached this Court against the summoning order invoking jurisdiction through Application U/S 482 No. 24385 of 2018 and on 26.7.2018 this Court refused the prayer made by the opposite party no. 2 to 4 to set aside the summoning order and specific direction was given to the opposite parties to surrender before the Court concerned within two months. It is further argued that suppressing the order dated 26.7.2018 passed by this Court, opposite party no. 2 to 4 filed Criminal Revision before the Sessions Judge concerned on 24.9.2018 without arraying the complainant as opposite party. It is further argued that revision was allowed by the court below without affording opportunity of hearing to the complainant and summoning order dated 9.5.2018 was set aside and direction was given to the concerned Magistrate to hear as afresh on the complaint. Referring to the aforesaid facts, it is also argued that since accused persons have approached this Court invoking jurisdiction under Section 482 Cr.P.C., therefore, revision before the Sessions Judge concerned was not maintainable. Order dated 7.12.2018 passed in the Criminal Revision is illegal and without jurisdiction. Thus prayer was made to admit and allow the revision setting aside the order dated 7.12.2018.
Learned counsel appearing for the opposite party no. 2 argued that revisionist has not raised this plea before the court below. Revision was well maintainable. There is no illegality, infirmity or perversity in the impugned order.
I have considered the rival submissions and have gone through the entire record.
Before adverting to the facts and submissions raised at the Bar it will be appropriate to quote the order dated 26.7.2018 passed on the Application U/S 482 No. 24385 of 2018 moved by the opposite party no. 2 to 4 :
"This application under Section 482 Cr.P.C. has been filed seeking the quashing of impugned order dated 09.5.2018 passed by Judicial Magistrate, Auraiya, in Complaint Case No. 1154 of 2016, Suresh Babu vs. Rakesh Babu and others, under Sections 420, 467, 468 I.P.C., Police Station Bidhuna, District- Auraiya.
Heard applicants' counsel and learned A.G.A. Entire record has been perused.
All the contentions raised by the applicants' counsel relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the applicants' counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the complaint or the summoning order or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the same is refused as I do not see any abuse of the Court's process either.
However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.
It is further clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.
With the aforesaid observations this application is finally disposed off"
It appears that instead of complying the directions given by this Court on 26.7.2018 in the aforesaid application, opposite party no. 2 to 4 moved Criminal Revision before the Sessions Judge concerned. Applicant/complainant was not arrayed as opposite party in the revision despite this fact that complainant was necessary party in the criminal revision. Sessions Judge concerned while deciding the criminal revision has overlooked this fact and without affording opportunity to the applicant/complainant allowed the revision setting aside the summoning order. Once summoning order was found valid and legal one on 26.7.2018 passed in the aforesaid application, there was no occasion to admit and entertain the Criminal Revision against the summoning order by the concerned Sessions Judge. It appears that suppressing the order dated 26.7.2018 passed in the aforesaid application, opposite party no. 2 to 4 who were summoned vide order dated 9.5.2018 have preferred Criminal Revision. Conduct of the opposite party no. 2 to 4 is against the law and revision was not maintainable. Hence the order dated 7.12.2018 (under challenge) passed in criminal revision is not sustainable. One opportunity had already been availed by the opposite party no. 2 to 4 invoking jurisdiction under Section 482 Cr.P.C.challenging the summoning order, therefore, they should not have preferred criminal revision before the Sessions Judge concerned.
Keeping in view the aforesaid facts, order dated 7.12.2018 passed by the Sessions Judge concerned in Criminal Revision moved by the complainant is liable to be set aside allowing the Criminal Revision.
Thus, the Criminal Revision is allowed. Order dated 7.12.2018 passed by the Sessions Judge, Auraiya in Criminal Revision No. 43 of 2018 (Rakesh Babu and others Vs. State of U. P.) arising out of complaint case no. 1154 of 2016, under Sections 420, 467, 468 IPC, Police Station Bidhuna, district Auraiya is set aside. Opposite party no. 2 to 4 are hereby directed to comply with the directions given vide order dated 26.7.2018 in the Application U/S 482 No. 24385 of 2018.
Order Date :- 31.7.2019 Sachdeva