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2016 DIGILAW 274 (ALL)

Kamla Devi v. State of U. P.

2016-01-20

D.Y.CHANDRACHUD, SUNEET KUMAR

body2016
JUDGMENT Suneet Kumar,J. The complainant is assailing an order dated 11 August 2015 passed by Additional District and Sessions Judge, Court No.3, Kaushambi in Criminal Revision No.02 of 2015 (Vinay Kumar and others vs. State of U.P. and others) whereby summoning order passed by the court below in Complaint Case No. 442 of 2013 (Smt. Kamla Devi Vs. Vinay Kumar and others) under section 452, 323, 504, 506 and 427 I.P.C., P.S. Pipri, District Kaushambi has been set aside directing the trial court to decide afresh after considering the objection of the respondent i.e. proposed accused. 2. Submission of the learned counsel for the applicant is that at this stage the proposed accused cannot be heard. 3. Learned Standing Counsel would contend that once summoning order has been set aside, there is no hard and fast rule that the objection to cognizability of offence and maintainability of complaint should be allowed to be raised only at the time of framing charges. 4. The Supreme Court in the case of Kunstocom Electronics (I) Pvt. Ltd. vs. Gilt Pack Ltd. and another, AIR 2002 SC 739 relying upon a decision rendered in Ashok Chaturvedi and Ors. Vs. Shitul H. Chanchani and another. 1998 Cri. L.J.4091 held that the determination of question as regards the propriety of the order of the Magistrate taking cognisance and issuing process need not necessarily wait till the stage of framing the charge. The Supreme Court observed as under: "This argument, however, does not appeal to us inasmuch as merely because and accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code, he is debarred from approaching the court even at an earliest (sic earlier) point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. Bu allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under section 482 of the Code can be exercised." Having due regard to the facts and circumstances of the case, I do not find any illegality, infirmity or jurisdictional error in the impugned order. The petition is, accordingly, dismissed. No order as to costs.