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2003 DIGILAW 2923 (ALL)

VIJAI v. STATE OF U. P

2003-12-15

K.N.OJHA

body2003
K. N. OJHA, J. ( 1 ) INSTANT revision has been preferred against order dated 20-2-1998 and 16-11-2000 passed by learned Judicial magistrate Azamgarh (II Additional Civil Judge (Junior Division), Azamgarh) by which the revisionists have been summoned under section 204 Cr. P. C. to face trial under sections 147, 427, 435 IPC and protest petition filed by them has been rejected on the ground that prima facie case was made out against them and protest petition was not maintainable at the stage of summoning the accused, ( 2 ) HEARD Sri V. K. Rai, learned counsel for the revisionist, learned AGA and Sri rakesh Prasad, learned counsel for the respondent No. 2, Rajpati, and have gonethrough the impugned orders and record. ( 3 ) A complaint was filed by Rajpati, respondent No. 2, resident of village devchandpur, police station Tarawan, district Azamgarh, against the revisionists Vijai, bhuteli, Sadhu and Ramashray, who are also the residents of the same village devchandpur, that they along with some others after forming an unlawful assembly damaged Naad, Khunta etc. of the complainant and set his mandavi on fire on 31-1-1997 at 7. 30 A. M. When wife and children of the complainant resisted, they were scolded. A complaint of the incident was sent to the Superintendent of Police, Azamgarh. When no action was taken, the complaint was filed. On this complaint the statement of the complainant Rajpati was recorded under Section 200 Cr. P. C. and statements of witnesses Ramadhar and Sail were recorded under Section 202 Cr. P. C. and the accused were summoned to face trial under sections 147, 427 and 435 IPC. ( 4 ) THE revisionists filed protest petition that Sadhu alias Prem Kumar was on duty in a Village Bank and Vijai Singh was in lucknow, therefore, the complaint deserves to be dismissed. It was also alleged that one ncr No. 15 of 1997 was filed by the complainant against the revisionist in which only damage to Naad, Khunta and mandavi was alleged and allegation of setting the mandavi on fire was not made. Thus there was contradiction. On these pleas it was alleged that the complaint be dismissed. It was also alleged that one ncr No. 15 of 1997 was filed by the complainant against the revisionist in which only damage to Naad, Khunta and mandavi was alleged and allegation of setting the mandavi on fire was not made. Thus there was contradiction. On these pleas it was alleged that the complaint be dismissed. ( 5 ) IN Instant case the main point for consideration is as to whether the complaint can be dismissed before the accused appeared before the Court, filed bail bonds and the case had proceeded up to the stage of charge where argument could be heard about the charge being framed or the accused being discharged. ( 6 ) LEARNED counsel for the revisionists has cited AIR 1972 SC 2639 , Nirmalji Singh v. State of West Bengal, in which it has been held by Honble the Apex Court that: "no doubt, one of the objects behind provisions of Section 202 Cr. P. C. is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as an accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material is there to support the allegation made in the complaint. It is the bounden duty of the magistrate while making an inquiry to elicit all facts not merely with a view to protect the interest of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. " ( 7 ) IN AIR 1992 SC 1815 : (1992 Cri LJ 2916), Punjab National Bank v. Surendra prasad Sinha, ft has been held by Honble apex Court that relevant facts and circumstances should be considered before issuing the process under Section 204 Cr. P. C. The process issued mechanically on the basis of the complaint filed as vendetta to harass persons deserves to be quashed because judicial process should not be an instrument of oppression or needless harassment. P. C. The process issued mechanically on the basis of the complaint filed as vendetta to harass persons deserves to be quashed because judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. ( 8 ) 1983 (20) All Cri C 264 : 1983 All LJ 1074, A. S. Nayal v. Khem Chand, has also been cited in which it has been held by this court : there is a growing tendency on the part of mischievous litigants to file vexatious and frivolous complaints. Complaints for criminal misappropriation are filed against out-station accused. Complaints for defamation are filed. Complaints of civil nature are filed. Some of the complaints are filed solely for harassment. The purpose of a mischievous litigant is achieved when the accused are summoned. Some Magistrates act in a mechanical manner. It is time to sound a note of caution and apprise the Magistrates of their responsibility under the law. It is obvious that a process can be issued on the argument under Section 200 Cr. P. C. Itself, but the legislature in its wisdom does not favour any hasty decision by the magistrate and wants him to postpone the issue of process if he Is not satisfied from the statement of the complainant and other material on the record that there is sufficient ground for proceedings. Under Section 202 (2) cr. P. C. the Magistrate may, if he thinks fit, take evidence of witnesses on oath. Under section 203 Cr. P. C. , if after considering the statements on oath (if any) of the complainant and witnesses and the result of the inquiry or investigation (if any) under Section 202 Cr. P. C. the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record the reasons for so doing. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding. P. C. the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record the reasons for so doing. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding. " ( 9 ) THE learned counsel for the revisionists has also cited 1976 SCC (Cri) 507 : AIR 1976 SC 1947 : 1976 Cri LJ 1533, Smt. Nagawwa v. V. S. Konjalgi, in which Honble the Apex Court has held that "in a proceeding under Section 202 Cr. P. C. The accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It is not the power of the magistrate to enter into the merit or demerit nor the High Court can go Into this matter in its revisional jurisdiction, which is a very limited one. Once the Magistrate has exercised Its discretion, it is not for the High court or even the Supreme Court to substitute its own discretion for that of the magistrate or to examine the case on merit with a view to find out whether or not the allegations in the complaint. if proved, would ultimately end in conviction of the accused, but such order passed by the Magistrate can be quashed if the complainant does not disclose the essential ingredients of an offence which Is alleged against the accused or where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused or where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or Inadmissible or where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of complaint by legally competent authority. " ( 10 ) SOME more rulings have been cited by the learned counsel for the revisionist. In all these rulings It has been held that the magistrate has to see prima facie before summoning the accused under Section 204 cr. " ( 10 ) SOME more rulings have been cited by the learned counsel for the revisionist. In all these rulings It has been held that the magistrate has to see prima facie before summoning the accused under Section 204 cr. P. C. that the complaint case does not lack from inherent improbabilities or apparently the complaint story is not false or the magistrate lacks Jurisdiction or the ingredients of the offence are not sufficient etc. ( 11 ) IN instant case both the parties are residents of the same village Devchandpur police station Tarawan, district Azamgarh. When the complaint was made before the senior Superintendent of Police the damage of Naad, Charni and mandavi was alleged and later on when the complaint was filed damage of Naad and Charn and setting fire in the mandavi was alleged. It is apparent that in both the cases it is alleged that the mandavi was damaged. If some of the accused were not present in the village on the date, there was no evidence before the magistrate from which a finding could be given that these revisionists were out of station, hence they were summoned. If the accused revisionists appear before the Court and they file paper that they were on duty at some other place on the date of the occurrence and evidence is adduced and the plea of alibi is so sufficient that it excludes the truth in the statements of the complainant and his witnesses, such accused-revisionists can be discharged. But when such shortcomings do not exist in the complaint story, the accused can be summoned and the summoning order cannot be said to be illegal or without jurisdiction. Even in 1976 SCC (Cri) 507 : air 1976 SC 1947 : 1976 Cri LJ 1533, Smt. Nagawwa v. V. S. Konjalgi, cited by the learned counsel for the revisionist it is held that in a proceeding under Section 202 cr. P. C. the accused has absolutely no locus stand! and Is not entitled to be heard on the question as to whether the process should be issued against him or not. If there is allegation and statement of eye-witnesses of the same village that the occurrence took place in the daylight. P. C. the accused has absolutely no locus stand! and Is not entitled to be heard on the question as to whether the process should be issued against him or not. If there is allegation and statement of eye-witnesses of the same village that the occurrence took place in the daylight. Naad, Khunta, charni and mandvi were damaged, the parties are of the same place and the learned Magistrate found that there was prima facie evidence to summon the accused, no illegality has been committed by him. ( 12 ) THE learned counsel for the opposite party No. 2 has cited Full Bench decision of this Court in 2000 (40) All Cri C 342 : 2000 all LJ 898 : 2000 Cri LJ 2738, Ranjeet Singh v. State of U. P. in which a large number of cases decided by Hon"ble the Apex Court and high Courts were dealt with in detail and it has been held that "the scope of inquiry under Section 202 Cr. P. C. is extremely limited-limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (1) on the materials placed by the complainant before the magistrate; (2) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (3) for deciding the question purely from the point of view of the complaint without at all adverting to any defence that the accused may have. In fact it is well-settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether process should be issued against him or not. " ( 13 ) IT was further held that "the conclusion drawn in 1993 (30) All Cri C 664 (665) : 1994 All LJ 174 : 1994 Cri LJ 67, Kailash chaudhary v. State of U. P. is not backed up by any provisions in the Cr. P. C. and it amounts to reversing the procedure for trial which is not permissible under the Cr. P. C. challenging the order of issuing process before the Court. Issuing the said process is in fact requiring the arms of the clock to move anti-clockwise which does not happen or at least should not happen. A parallel trial should not commence before the actual trial begins. P. C. challenging the order of issuing process before the Court. Issuing the said process is in fact requiring the arms of the clock to move anti-clockwise which does not happen or at least should not happen. A parallel trial should not commence before the actual trial begins. The complaint and/or the informant also have equal rights to proceed against the guilty person through the Code of criminal Procedure Just as those who are accused who have their rights to be protected under relevant provisions of the Cr. P. C. The line of demarcation must be clearly drawn. The view that interlocutory order cannot be challenged in Revision before the High Court by an accused, cannot be a reason to support the conclusion that the same interlocutory order will again be subject matter of readjudication by relegating the accused summoned to pre-summoning procedure. The said conclusion would even otherwise be unwelcome as It would result in starting a new procedure of pre-trial before start of actual trial. There Is appeal or revisional jurisdiction of superior Courts and if the said new procedure is thrust upon Magistrate/ courts, there will be no end to the litigative process, which is so avowedly bounded by the provisions of the Cr. P. C. " ( 14 ) THUS it has been held that when accused has been summoned they have to appear and file bail bonds. The case has to proceed. At proper stage as contemplated in Cr. P. C. , the point of discharge can be raised but without properly appearing in the court and proceeding in accordance with cr. P. C. to move application for discharge or pray for recall of the summoning order is against the procedure of Cr. P. C. ( 15 ) IN view of the above discussion in this case there does not appear any juris-dictional error or inherent improbability in the case from which it may be inferred that impugned orders passed by the learned magistrate are of such nature that the complaint story is unnatural or does not contain essential ingredient of the offence or is not possible in the circumstances of the case. ( 16 ) IN these circumstances it is held that this revision is not maintainable and deserves to be dismissed. ( 17 ) THE revision is dismissed. Stay order stands vacated. ( 16 ) IN these circumstances it is held that this revision is not maintainable and deserves to be dismissed. ( 17 ) THE revision is dismissed. Stay order stands vacated. ( 18 ) LET a copy of this judgment be sent to the Court concerned for disposal of the case in accordance with law. Revision dismissed. .