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2015 DIGILAW 1232 (ALL)

Sunil Kumar v. State of U. P.

2015-05-14

BHARAT BHUSHAN

body2015
JUDGMENT Bharat Bhushan, J. Heard learned counsel for the applicants and learned AGA for the State. 2. This criminal Misc. Application under Section 482 Cr.P.C. has been filed for quashing of the summoning order dated 18.2.2015 passed by Judicial Magistrate, Court no. 22 Etah in Case No.199 of 2014 (Surajpal Vs. Sher Singh and others) under Sections 323, 504, 506, 452, 354 I.P.C., P.S. Rejore, District Etah. 3. It appears that respondent no. 2 filed a complaint against the applicants alleging that applicants had assaulted and threatened him on 17.3.2014 at about 10 am. An enquiry was conducted wherein the statements of complainant and his witnesses were recorded under Sections 200 and 202 Cr.P.C. After taking evidence of complainant and his witnesses, learned Magistrate summoned the applicants to face trial for the offence under Sections 323, 504, 506, 452, 354 I.P.C. This order and entire proceedings in criminal case are under challenge before this Court. 4. The contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment. 5. Learned AGA has submitted that available material is enough to summon accused persons and considering material on record, it can not be said that no evidence is made out against the applicants. 6. Learned Magistrate has summoned applicants (accused persons) on the basis of preliminary inquiry conducted by him. At this stage, learned Magistrate is not required to conduct a roving and meticulous inquiry. The Apex Court in Sonu Gupta versus Deepak Gupta & others, ILC 2015-SC-CRL-Feb7 has held thus: “At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.” 7. Thus, legal position is very clear the Magistrate has to prima facie make up his mind on basis of material collected during inquiry. 8. Thus, legal position is very clear the Magistrate has to prima facie make up his mind on basis of material collected during inquiry. 8. Similarly power under section 482 Cr.P.C. can not be used to scuttle criminal proceeding in routine manner. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen 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 lastly 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. Moreover, the applicants have got a right of discharge under Section 245 Cr.P.C. before the court below and they are free to take all the submissions in the said discharge application before the trial court. The prayer for quashing of proceedings is refused. 9. However, it is provided that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However in case the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. With the aforesaid directions, this application is finally disposed off.