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Allahabad High Court · body

2015 DIGILAW 2309 (ALL)

Shashikant Singh v. State of U. P.

2015-08-10

SHASHI KANT

body2015
JUDGMENT Shashi Kant, J. Heard Sri Pradeep Kumar Rai, learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record. 2. This application under Section 4 82 Cr.P.C. has been filed by the applicant for quashing the order dated 18.02.2015 passed by learned Chief Judicial Magistrate, Ghazipur as well as entire proceedings of Criminal Complaint Case No. 299 of 2014, under Sections 304B, 498-A, I.P.C. and 3/4 Dowry Prohibition Act, Police Station Zamania, District Ghazipur. 3. On the request of learned counsel for the parties and in view of the order proposed to be passed today. Matter was finally heard without issuing notice to opposite party no.2 and is being decided finally. 4. Brief facts related to instant application are that opposite party No.2 moved an application under Section 156(3) Cr.P.C. before the Judicial Magistrate, Ghazipur on 13.04.2011. Vide order dated 19.05.2011, the learned Judicial Magistrate, Ghazipur directed the concerned police station to lodge F.I.R. In pursuance of the order, an F.I.R. was lodged against accused applicants under Sections 304B, 498A I.P.C. and 3/4 D.P.Act for making additional demand of dowry of Rs. 1.00 Lac and colour television and for non-fulfillment of above demands committing dowry death of Smt. Sadhana, sister of opposite party no.2. 5. After investigation, final report dated 18.06.2011 was filed in the Court. The complainant opposite party no.2 filed a protest petition against the final report which was directed to be registered as a complaint Case. After recording statements of complainant and his witnesses under Section 200 & 202 Cr.P.C. respectively applicants have been summoned by learned lower court vide impugned order. 6. Learned counsel for the applicants urged that applicants are resident of a place beyond the area in which learned lower courts exercises its jurisdiction. They were summoned without following procedure prescribed in Section 292 (1) Cr.P.C. and without sufficient grounds for proceedings against the applicants. It is also urged that though the case against applicants is exclusively triable by Courts of Sessions despite it without examining all witnesses of complainant without filing list of the prosecution witnesses, applicants are summoned by the learned lower court vide the impugned order. It is also urged that though the case against applicants is exclusively triable by Courts of Sessions despite it without examining all witnesses of complainant without filing list of the prosecution witnesses, applicants are summoned by the learned lower court vide the impugned order. In view of the facts and circumstances, the impugned order is wrong and illegal due to non compliance of Sections 202 (1) and proviso of Section 202 (2) and 204(2) Cr.P.C. and not sustainable in the eyes of law. 7. Per contra learned A.G.A. has opposed the above arguments raised on behalf of the applicants on the ground that summoning order has been passed after recording statement of complainant and his witnesses. The learned lower court on finding sufficient grounds has proceeded against the applicants, as such there is sufficient compliance of the provisions of Section 202 (1) Cr.P.C. However, he could not show sufficient material in respect of compliance of proviso of Section 202 (2) and 204 (2) Cr.P.C. 8. The sections 202 and 204 Cr.P.C.read as follows : - " 202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, ( and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or nor there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. 204. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be - (a) A summons-case, he shall issue his summons for the attendance of the accused, or (b) A warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed." 9. It is clear from the impugned order, the learned lower Court has issued summons to the applicants after holding inquiry i.e. recording of statements of the complainant, his witnesses and documentary evidence available on record and finding sufficient grounds to proceed against the applicants therefore, I find no substance in the arguments of the learned counsel for the applicants that the impugned order is bad in law and violative of provisions of Section 202 (1) Cr.P.C. 10. But from the perusal of the record, it is not proved that being the case exclusively triable by the Court of sessions. Learned lower Court has called upon the complainant to produce all his witnesses and examined them on oath and any list of the prosecution witnesses has been filed prior to passing of summoning order. Therefore, the impugned order appears to be passed in violation of proviso of Section 202 (2) and 204(2) Cr.P.C. and as such not sustainable in the eyes of law. 11. Therefore, the impugned order appears to be passed in violation of proviso of Section 202 (2) and 204(2) Cr.P.C. and as such not sustainable in the eyes of law. 11. In view of the above, the impugned order dated 18.02.2015 is set-aside and matter is remanded back to the learned lower Court to pass fresh order in the matter after compliance of the proviso of Sections 202(2) and 204(2) Cr.P.C., at the earliest, if possible within 60 days from receipt of certified copy of this order and after providing opportunity of hearing to the opposite party no.2 12. The application is accordingly disposed of.