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2015 DIGILAW 3454 (ALL)

Veerendra v. State of U. P.

2015-11-03

OM PRAKASH VII

body2015
JUDGMENT Om Prakash-VII, J. The present application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the proceedings of complaint case no. 76 of 2014 under Sections 342, 354, 323, 376/511, 506 IPC and 7, 8 and 4/18 POCSO Act, Police Station, Chitrahat, District - Agra arising out of summoning order dated 24.8.2014 pending in the court of Additional District & Sessions Judge, Court No.9, Agra. Further prayer has been made to stay the further proceedings of the aforesaid case. 2. Heard learned counsel for the applicants and the learned AGA appearing for the State. 3. It is submitted by the learned counsel for the applicants that the complaint was filed on the basis of false facts and also on the basis of malice. It is further submitted that from the version of the complaint as well as statement of witnesses, offence under the aforesaid Sections is not made out against the applicants. General allegations have been made in the complaint. It is further submitted that since the applicants have been summoned to face the trial for the offences punishable under Sections 342, 354, 323, 376/511, 506 IPC and 7,8 and 4/18 POCSO Act, which are exclusively triable by the Sessions Judge, proviso enumerated under Section 202 (2) Cr.P.C. was not followed by the concerned Magistrate and all the witnesses were not examined before passing the summoning order. 4. The impugned order suffers from illegality and infirmity. 5. On the other hand, learned AGA has submitted that applicants have been summoned on the basis of the statements recorded under Sections 200 Cr.P.C. and 202 Cr.P.C. The impugned order does not suffer from any illegality or infirmity. 6. I have considered the submissions made by the learned counsel for the parties. 7. The Magistrate dealing with complaint at this stage has to see only prima-facie case and it cannot be said that no prima-facie case is made out against the applicants. Further, the plea raised before this Court would require leading of evidence, which can be raised before the court concerned at the appropriate Stage. 8. So far as the submission that proviso enumerated under Section 202 (2) Cr.P.C. have not been complied with while passing the summoning order is concerned, the Hon'ble Supreme Court in the case of Shivjee Singh Vs. 8. So far as the submission that proviso enumerated under Section 202 (2) Cr.P.C. have not been complied with while passing the summoning order is concerned, the Hon'ble Supreme Court in the case of Shivjee Singh Vs. Nagendra Tiwary and others), (2010) 7 SCC 578 in paragraphs 22, 23 and 32 has held as under: "22. The use of the word `shall' in proviso to Section 202 (2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202 (2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. 23. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. 32. 32. As a sequel to the above discussions, we hold that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202 (2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202 (2)". In view of the aforesaid, I am of the opinion that the no interference is called for with the impugned order. The same does not suffer from any infirmity or illegality. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.