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2014 DIGILAW 3292 (ALL)

Banshi Dhar v. State of U. P. Thru Secy.

2014-11-05

VIJAY PRAKASH PATHAK

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JUDGMENT Vijay Prakash Pathak, J. Heard learned counsel for the petitioners as well as learned AGA for the State and perused the record. 2. Present petition has been filed with the prayer to quash the judgment and order dated 21.08.2014 passed by Additional Sessions Judge, Bhadohi-Gyanpur dismissing the criminal revision no.01 of 2012 filed by the petitioners against the order dated 02.11.2011 passed by Judicial Magistrate-I, Bhadohi-Gyanpur in case no.911 of 2009 (Giraja Shankar Vs. Banshi Bind and others), by which the petitioners have been summoned to face trial for the offences under Sections 504, 436, 427 IPC. 3. Learned counsel for the petitioners has contended that no offence has been made out against the petitioners and the complaint was filed with a mala fide intention for the purposes of harassment only, but the learned Magistrate has illegally summoned the petitioners to face trial for the offences punishable under Sections 504, 436, 427 IPC. The learned lower revisional court has also not considered the matter properly and wrongly dismissed the revision filed by the petitioners. 4. On the other hand, learned AGA supported the orders impugned passed by both the courts below and contended that the learned Magistrate after considering the entire material, including the allegations in the complaint, statement of the complainant and other witnesses recorded under Sections 200 and 202 Cr.P.C. respectively has come to the conclusion that a prima facie case has been made out against the petitioners for the offences punishable under Sections 504, 436, 427 IPC and accordingly summoned them to face trial and the learned lower revisional court has also rightly dismissed the revision filed by the petitioners. It is also submitted that there is no illegality or irregularity in the orders passed by both the courts below as at present a prima facie case is to be seen and considered. 5. After considering the arguments advanced by the rival parties' counsel, the impugned summoning order along with all other material available on record, I find no infirmity, illegality, irregularity or jurisdictional error in the orders passed by both the courts below. At this stage, it cannot be said that no offence is made out against the petitioners. All the averments made on behalf of the petitioners are related to the disputed question of facts, which cannot be adjudicated upon by this Court under its writ jurisdiction. At this stage, it cannot be said that no offence is made out against the petitioners. All the averments made on behalf of the petitioners are related to the disputed question of facts, which cannot be adjudicated upon by this Court under its writ jurisdiction. At this stage only prima facie case is to be seen and considered in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para- 10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. However, the petitioners may raise all their submissions and objections before the trial Court at the stage of framing of charges by way of proper application. 6. Accordingly, the relief sought for by the petitioners in the case as aforesaid is hereby refused. 7. However, considering the entire facts and circumstances of the case, if the petitioners appear/ surrender before the court below within a period of thirty days from today and apply for bail, their prayer for bail shall be considered and disposed of by the learned court below in accordance with the observations of the Full Bench of this Court in Amrawati and another Vs. State of UP, 2005 Cri. LJ 755, affirmed by the Supreme Court in Lal Kamlendra Pratap Singh Vs. State of UP, (2009) 4, SCC 437 and reiterated by the Division Bench of this Court in Sheoraj Singh alias Chuttan Vs. State of UP and others, 2009 (65) ACC 781. 8. For a period of thirty days from today no coercive action shall be taken against the petitioners. With the aforesaid observations, the petition is disposed of finally.