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2015 DIGILAW 525 (ALL)

Bandana Srivastava v. State of U. P.

2015-03-20

PRAMOD KUMAR SRIVASTAVA

body2015
JUDGMENT Pramod Kumar Srivastava,J. Present revision has been filed against order dated 20-05-2004 passed by Addl. Chief Judicial Magistrate, Kaushambi, in Criminal case no. 3001/ 2004 Smt. Bandana Srivastava versus Rajesh Kumar & Others. 2. After receiving evidences under section 200 and 202 CrPC from the complainant/ revisionist, the Court below had passed summoning order dated 20-05-2004 by which out of five accused named in complaint only three accused were summoned for offences u/ss 498-A, 323, 504 IPC & section 3/4 D.P.Act; and no prima facie case for summoning remaining two named accused, namely Smt. Gudiya and Km. Bandana @ Neetu (O.P. no. 2 and 3 of revision). Aggrieved by this impugned order complainant had preferred present revision with prayer to summon remaining two named persons, namely Smt. Gudiya and Km. Bandana @ Neetu (O.P. no. 2 & 3) as accused. 3. None was present from revisionist side at the time of hearing. Heard learned AGA and perused the records. 4. Main ground mentioned in memo of revision was that evidence adduced by complainant/ revisionist make out commission of offence against all accused persons but in spite of common and similar evidences only three persons were summoned. Like other three summoned accused, remaining two persons (O.P. no. 2 and 3 of revision) should have been summoned. 5. A perusal of record shows that Court below had considered the available evidences on merits and rightly summoned the three accused for offence under sections 498-A, 323, 504 IPC & section 3/4 D.P.Act. Learned Magistrate after going through the evidences was not satisfied about prima facie commission of any offence by O.P. no. 2 and 3. Finding of fact reached by lower Court has been challenged in this revision. A perusal of impugned order shows that lower Court had appreciated the evidences and circumstances of the case and thereafter reached to its conclusion. There may be difference of opinion as to whether on basis of those evidences conclusion reached at by learned Magistrate is correct, or the other probability pointed out by revisionist is proper. But certainly revisional jurisdiction cannot be invoked for interference in impugned order merely on ground that on basis of available facts there is probability of reaching to on more conclusions other than the one reached by the trial Court. But certainly revisional jurisdiction cannot be invoked for interference in impugned order merely on ground that on basis of available facts there is probability of reaching to on more conclusions other than the one reached by the trial Court. In ruling "Jagannath Choudhary & ors vs. Ramayan Singh & another, AIR 2002 S.C. 2229 " Hon'ble Apex Court held : - "Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction". In this ruling Hon'ble Supreme Court also held that "It is not an appeal wherein scruitiny of evidence is possible, neither the revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible." 6. In the impugned order, the learned Magistrate who considered the evidences, had found the commission of offence only by three summoned persons; and finding on those points does not appear to be incorrect. Since conclusion reached by lower Court in impugned order is prima facie presentable and probable, therefore on basis of above mentioned ruling it is held that such order should not be interfered with in revision. In full bench ruling of Hon'ble Supreme Court "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" it has been held that: - "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 7. In present case learned Magistrate appears to have completed his legal duty by using his legal mind and discretion in passing of impugned order. That is why he passed summoning order for certain accused persons and not for all the accused named by revisionist- complainant. The finding of learned Magistrate cannot be interfered with through revision on ground that another view may also be possible on those evidences. So far contention of alleged available evidences of commission of offences is concerned it will be open for revisionist to raise the issue before the Court concerned at the appropriate stage, who shall act upon in accordance with law. Revisionist will again get an opportunity to present her case again at the time of evidence under section 244 CrPC. Then she can properly present her case again for framing of the charges or summoning additional accused persons. 8. On basis of above discussion it is held that there appears no commission of any illegality, irregularity or impropriety in passing impugned order dated 20-05-2004 that may warrant interference in it by exercise of revisional jurisdiction. Therefore revision fails, and is hereby dismissed.