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2009 DIGILAW 2019 (ALL)

Jag Narain v. State of U. P.

2009-05-06

VIJAY KUMAR VERMA

body2009
ORDER :- Whether Revision against summoning order is maintainable, is the main point that falls for consideration in this revision, by means of which summoning order dated 18-8-2005 passed by Judicial Magistrate 1st, Jaunpur, in Complaint Case No. 1456 of 2005 (Dinesh Kumar v. Jag Narain & others), under sections 323, 504, 506, 452, IPC has been challenged. 2. By the impugned order, the revisionists Jag Narain, Gayatri Devi, Sangita and Umesh have been summoned to face toe trial under sections 452, 323, 504, 506: IPC, on the basis of a complaint filed by the complainant Dinesh Kumar (O.P. No.2 herein). 3. Shorn of unnecessary details, the facts leading to the filing of this revision, in brief, are that a complainant was filed on 17-6-2005 in the Court of Judicial Magistrate 1st, Jaunpur by the complainant Dinesn Kumar Upadhyay impleading revisionists as accused. Annexure (3) is the copy of that complaint. Allegations made in the complainant, in brief, are that on 13-6-2005 at about 2.00 p.m. when the complainant was sleeping in his dalan, Jag Narain, his wife Smt. Gayatri Devi, his son Umesh Kumar and Smt. Sangita, wife of Umesh Kumar having lathidanda came on the door of his house and began to hurl abuses and told the complainant to ask his father for compromise. When the complainant told the accused persons to have a talk for compromise with his father, the accused persons, having made preparation to cause harm entered into the dalan of the house of complainant and began to cause mar-peet. When the complainant raised noise, the witness Raghubansh, Santosh and other. villagers came there and saw the incident. Thereafter, the accused persons went away giving threatening. After recording the statement of the complainant under section 200 and making inquiry under section 202 Cr.P.C., the court below passed the impugned order summoning the accused-revisionists to face the trial as stated herein-above. Hence this revision. 4. I have heard Sri S.K. Dubey, Advocate, appearing for the revisionists, learned AGA for the State and Sri Rakesh Kumar Dubey, Advocate, appearing for O.P. No.2 at length and also perused the entire material on record carefully. . 5. At the outset, a preliminary objection was raised by Sri Rakesh Kumar Dubey, Advocate, appealing for the complainant. 4. I have heard Sri S.K. Dubey, Advocate, appearing for the revisionists, learned AGA for the State and Sri Rakesh Kumar Dubey, Advocate, appearing for O.P. No.2 at length and also perused the entire material on record carefully. . 5. At the outset, a preliminary objection was raised by Sri Rakesh Kumar Dubey, Advocate, appealing for the complainant. about maintainability of the Revision against summoning order and it was vehemently contended by him that in view of the observations made by the Honble Supreme Court in Adalat Prasad v. Rooplal Jindal and others [2004 (50) ACC 924] : (AIR 2004 SC 4674) and Subramanium Sethuraman v. State of Maharashtra and another[2005 (51) ACC 684] : ( AIR 2004 SC 4711 ) the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court in the proceeding under section 482 Cr.P.C. and hence, this Revision against the summoning order is not maintainable, being barred by section 397 (2) Cr.P.C. 6. Sri .S.K. Dubey, Advocate, .appearing for the revisionists refuting aforesaid contention submitted that order issuing process against the accused is not interlocutory order and hence the Revision against summoning order would not be barred by section 397. (2) Cr.P.C. 7. Having given my thoughtful consideration to the rival submissions made by the parties counsel about maintainability of Revision against summoning order, I find force in the submission of learned counsel for the revisionists that an order issuing process for summoning the accused to face the trial is not an interlocutory order and Revision against such order is not barred by sub-section (2) of Section 397 Cr.P.C. Although the Honble Apex Court has held in Adalat Prasad v: Rooplal Jindal and Subramanium Sethuraman v. State of Maharashtra, (supra) that the only remedy available to the accused against summoning order is to .move the High Court in the proceeding under section 482 Cr.P.C. but the matter of maintainability of Revision against summoning order was not specifically raised before the Honble Apex Court in those cases. The matter in issue in both• the aforesaid cases before the Honble Apex Court was as to whether the Magistrate is empowered to recall its summoning order. The matter in issue in both• the aforesaid cases before the Honble Apex Court was as to whether the Magistrate is empowered to recall its summoning order. In that context, the Honble Apex Court had held that the Magistrate is not empowered to recall the order issuing process against the accused and the only remedy available to the accused against summoning order is to invoke the jurisdiction of High Court in the proceeding under section 482 Cr. PC. Since the matter of maintainability of Revision against summoning order was not involved in those cases, hence no opinion was expressed by the Honble Apex Court on this issue. 8. The matter of maintainability of Revision against .summoning order has been considered by the Honble Apex Court in several decisions. I would like to cite the decision of the Honble Apex Court in Rajendra Kumar Sita Ram Pandey & others v. Uttam and another 1999 (38) ACC 438 : ( AIR 1999 SC 1028 ) in which the matter of bar of Revision under the provisions of sub-section (2) of section 397 Cr.P.C. against summoning order was considered. Following its earlier decisions in the case of Amarnath and others v. State of Haryana and others 1977 Cri.LJ 1891 and Madhu Limaye v. State of Maharashtra 1978 (15) ACC 184: ( AIR 1978 SC 47 ) the Honble Apex Court in Rajendra Kumar Sita Ram Pandey (supra) has held that order issuing process for summoning the accused to face the trial is not an interlocutory order and therefore the bar under sub-section (2) of section 397 would not apply to such order. Therefore, in view of the specific law laid down by the Honble Apex Court in the case of Rajendra Kumar Sita Ram Pandey (supra), Revision against summoning order is legally maintainable. 9. The matter of maintainability of revision was considered again by the Honble Apex Court in the case of KK Patel and another v. State of Gujarat and another 2000 (41) ACC 351 (SC) : ( AIR 2000 SC 3346 ). In para 11 of the judgment in KK Patel (supra), the Honble Apex Court held that "it is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for section 397 (2) Cr.P.C. of the Code, the sole test is not whether such order was passed during the interim stage. In para 11 of the judgment in KK Patel (supra), the Honble Apex Court held that "it is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for section 397 (2) Cr.P.C. of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397 (2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated." Applying the principle laid down by the Honble Apex Court in Amarnath v. State of Haryana, Madhu Limaye v. State of Maharashtra and KK Patel v. State of Gujarat (supra), in my considered opinion, the order issuing process against the accused is not an interlocutory order and hence, Revision against such order would not be barred under sub-section (2) of section 397 Cr.P.C. 10. The matter of challenging summoning order in Revision under section 397 or in proceedings under section 482 Cr.PC., was recently considered by the Honble Apex Court in Dhariwal Tobacco Products Ltd. & others v. State of Maharashtra and another 2009 (64) ACC 962 : ( AIR 2009 SC 1032 ). Making reference to its earlier decisions, the Honble Apex Court has specifically held in para 8 of the report at page 963 that indisputably issuance of summons is not an interlocutory order within the meaning of section 397 of the Code. Therefore, in view of this observation of the Honble Apex Court, the present Revision against summoning order would not be barred by sub-section (2) of section 397 Cr.P.C. and is legally maintainable, although jurisdiction of the High Court under section 482 Cr.P.C. can also be invoked to challenge the summoning order, as held by the Honble Apex Court in Dhariwal Tobacco Products Ltd. (supra). 11. 11. Assailing the impugned summoning order, it was contended by the learned counsel for the revisionists that as a counter blast to an earlier complaint filed by Smt. Parma Devi, mother of the revisionist Jag Narain, the complainant Dinesh Kumar had filed false complaint against the revisionists and hence on this ground alone impugned summoning order is liable to be set-aside. For this contention, the learned counsel for the revisionists has placed reliance on M/s Eicher Tractor Ltd.,& others v. Harihar Singh & another 2009 (1) JIC 245 (SC). It was also submitted by the learned counsel for the revisionists that litigation between the parties was going on prior to the alleged incident and due to that enmity, with a view to cause harassment to the revisionists, a false complaint was filed by the complainant in present case. 12. On the contrary, it was submitted by the learned counsel for the complainant that there is sufficient prima facie evidence to proceed against the accused persons in present case and hence the impugned summoning order cannot be quashed by this Court merely by saying that the complaint has been filed as a counter-blast to the earlier complaint. The contention of the learned counsel for the complainant was that at the stage of issuing process under section 204 Cr.P.C., the court is required to see only whether there are sufficient grounds to proceed against the accused persons and at this stage the court is not required to be satisfied that the evidence produced by the complainant is sufficient for conviction. 13. Having carefully gone through the evidence led by the complainant under sections 200 and 202 Cr.P.C., I find force in the aforesaid submission of the learned counsel for the complainant. The allegations made in the complaint have been fully supported by the complainant in his statement under section 200 Cr.P.C. Two witnesses, namely, Raghubansh and Santosh were examined by the complainant under section If 202 Cr.P.C. Both these witnesses also have supported the allegations of the complainant in their statements (annexure 5 & 6). The complainant has filed copy of his injury report along with counter-affidavit dated 213-2006 as annexure CA-2. The complainant has filed copy of his injury report along with counter-affidavit dated 213-2006 as annexure CA-2. Therefore, having regard• to the statement of the complainant recorded under section 200 Cr.P.C. and the evidence led by him in the iI1quiry under section 202 Cr.P.C., the learned Magistrate was fully justified to summon the revisionists to face the trial for the offences mentioned in the impugned summoning order. 14. It is a settled legal position that at the stage of passing order under Section 203 or 204 Cr.P.C., only a prima facie case has to be seen and not whether the evidence as adduced is to result in conviction of the accused persons. In the case of Nirmaljit Singh Hoon v. State of West Bengal and Anr.1973 (10) ACC 181 : ( AIR 1972 SC 639 ) while considering the scheme of Sections 200, 203 Cr.P.C. it has been held by the Honble Apex Court that Section 203 Cr.P.C. does not say that a regular trial for adjudging the truth or otherwise of the accusations made against the accused should take place at that stage. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgement no sufficient ground for proceeding, he may dismiss the complaint. 15. In the case of Chandra Deo Singh v. Prakash Chandra Bose, 1964(1) SCR 639 : (AIR 1964 SC 1430), the Honble Apex Court held that at the stage of enquiry under Section 202 Cr. P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. 15. In the case of Chandra Deo Singh v. Prakash Chandra Bose, 1964(1) SCR 639 : (AIR 1964 SC 1430), the Honble Apex Court held that at the stage of enquiry under Section 202 Cr. P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & ors., 1976 (13) ACC 225: ( AIR 1976 SC 1947 ), while considering the scope of enquiry under Section 202 Cr.P.C., the Honble Apex Court has held that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court: (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. 16. In the case of S.W. Palanitkar & Ors. v. State of Bihar & Am. 2002(44) ACC 168: ( AIR 2001 SC 2960 ) the Honble Apex Court has held that at the stage of passing order under section 203 CLP.C., searching sufficient ground to convict is not necessary. 17. The Honble Apex Court has considered the matter of exercising inherent power for quashing the FIR or complaint in State •of A.P. v. Bajjoori Kanthaiah & another AIR 2009 SC 97 .1. The following observations made in para 7 of the report at page 673 are worth mentioning: "When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon all enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process. Lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. " 18. The following observations made by the Honble Apex Court in State of A.P. v. Bajjoori Kanthaiah (supra) in para 8 are also worth mentioning: It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered. then the mala fides of the informant would be of secondary importance. When an information is lodged at the police station and an offence is registered. then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding." 19. There is no dispute about the observations made by the Honble Apex Court in M/s. Eicher Tractor Ltd. v. Harihar Singh (supra). on which strong reliance was placed by the learned counsel for the revisionists but on the basis of the authority of this case the impugned order cannot be set-aside in the present case holding the complaint as counter-blast to the earlier complaint filed by Smt. Parma Devi mother of the revisionist Jag Narain. It is true that Smt. Parma Devi had filed a complaint prior to the complaint of O.P. No. 2 regarding an incident which is said to have occurred on 12-10-2003, but on that basis it cannot be said that complaint in present case was filed by O.P. No.2 against the revisionist as a counter-blast because the incident for which complaint was filed by O.P. No.2 is said to have occurred on 13-6-2005, whereas the incident of the complaint of Smt. Parma Devi is said to have occurred on 12-10-2003. Therefore. the impugned summoning order cannot be quashed on the basis of the authority of M/s Eicher Tractor Ltd. v. Harihar Singh (supra), because the facts of that case were entirely different from the facts of the present case. In the case of Ms Eicher Tractor Ltd. (supra) a cheque was issued, which was bounced and thereafter a complaint under section 138 read with section 141 Negotiable Instruments Act was filed. Another complaint alleging theft of cheques including the cheque, in question was filed subsequently by the accused of that case; which was quashed by the Honble Apex Court holding that the proceedings were initiated as a counter-blast to earlier proceedings, which was nothing, but an abuse of the process of law. Another complaint alleging theft of cheques including the cheque, in question was filed subsequently by the accused of that case; which was quashed by the Honble Apex Court holding that the proceedings were initiated as a counter-blast to earlier proceedings, which was nothing, but an abuse of the process of law. In the present case, the facts are entirely different as stated herein-above and hence, the proceedings in present case cannot be quashed on the basis, of the decision of Honble Apex Court in M/s Eicher Tractor case (supra), because a case is only an authority for what it actually decides and not what logically follows from it. 20. The Honble Apex Court has held in Deepak Bajaj v. State of Maharashtra & another AIR 2009 SC 628 that it is well settled that a judgment of a Court is not to be read mechanically as a Euclids Theorem nor as if it was a statute. 21. On the subject of precedents Lord Halsbury, L.C. said in Quinn v. Leathern,1901 AC 495:- "Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I which to make, and one is to repeat what I have very often said before that every judgment must be read as applicable to the particular facts proved or assumed to be proved. since the generality of the expressions which may be found there are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all" 22. In Ambica Quarry Works v. State of Gujarat & others (1987) 1 SCC 213 : ( AIR 1987 SC 1073 ) (vide paragraph 18) the Hon’ble Apex Court observed:- “The ratio of any decision must be understood in the background of the facts of that case. In Ambica Quarry Works v. State of Gujarat & others (1987) 1 SCC 213 : ( AIR 1987 SC 1073 ) (vide paragraph 18) the Hon’ble Apex Court observed:- “The ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides and not what logically follows from it.” 23. In Bhavnagar University v. Palittana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 : ( AIR 2003 SC 511 ) (vide paragraph 59, the Hon’ble Apex Court observed:- “It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.” 24. As held in Bharat Petrolieum Corporation Ltd. & another v. N.R. Vairamani & another ( AIR 2004 SC 4778 ), a decision cannot be relied on without disclosing the factual situation. In the same judgment the Hon’ble Apex Court also observed:- “Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision of which reliance is placed. Observations of Courts are neither to be read as Euclid’s Theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of to stature, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgment. They interpret words of statues: their words are not to be interpreted as statutes”. (Emphasis supplied) 25. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at page 761), Lord Mac Dermot observed:- “The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.” 26. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid Said, "Lord Atkins speech................ This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.” 26. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid Said, "Lord Atkins speech................ is not to be treated as if it was a statute definition: it will require qualification in new circumstances, Megarry; J. in (1971) 1 WLR 1062, observed: "One must not, of course, construe even a reserved judgment of Russell, J. as if it were an Act of Parliament". 27. And in Herringion v. British Railways Board (.l972 (2) WLR 537) Lord Morris said: "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances, are made in the setting of the facts of a Particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lords Denning in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of another. To decide, therefore, on which said of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the said branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it". (Emphasis supplied) 28. The same view was taken by the Honble Apex Court in Sarva Shramik Sanghatana (K.V.), Mumbai v. State of Maharashtra & Ors. AIR 2008 SC 946 and in Government of Karnataka & Ors. v. Gowramma & Ors. AIR 2008 SC 863 . 29. (Emphasis supplied) 28. The same view was taken by the Honble Apex Court in Sarva Shramik Sanghatana (K.V.), Mumbai v. State of Maharashtra & Ors. AIR 2008 SC 946 and in Government of Karnataka & Ors. v. Gowramma & Ors. AIR 2008 SC 863 . 29. Therefore, in view of the observations made in the cases mentioned herein-above, interference by this Court in the impugned summoning order on the basis of the authority of M/s Eicher Tractor Ltd. v. Harihar Singh (supra) is not warranted as the impugned order does not suffer from any illegality and the learned court below did not commit any error of fact or law in passing the said order. 30. Consequently, the revision is dismissed. Stay order dated 14-12-2005 stands vacated. Revision dismissed.