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2016 DIGILAW 3803 (ALL)

WAKEEL AHMAD v. STATE OF U. P.

2016-11-25

ALOK KUMAR MUKHERJEE

body2016
JUDGMENT : 1. Heard Sri Amit Kumar Srivastava, learned counsel for the revisionist and the learned A.G.A. appearing for the State and perused the record. 2. The present revision has been filed against the order dated 9.9.2016 passed by the Judicial Magistrate, Baheri, District Bareilly in Complaint CaseNo.135 of 2014 ( Shamim Bani Vs. Wakeel Ahmad), under section 376I.P.C. and section 3/5 of Dowry Prohibition Act, P.S. Sheeshgarh, District Bareilly, whereby the learned Magistrate has rejected the application under Section 204/245 Cr.P.C. 3. It is contended by the learned counsel for the revisionist that though the revisionist and his family members were named in the first information report but after investigation, the Investigating agency had submitted final report in the matter, whereupon the complainant/opposite party no.2 filed protest petition before the concerned court of Magistrate who, in turn, treated it as complaint case. It is further submitted that without considering the facts and circumstances of the case, evidence on record and without applying his mind, learned Judicial Magistrate, Baheri, District Bareilly proceeded the matter as complaint case, which is wholly illegal and not sustainable in the eye of law. 4. Learned counsel for the revisionist further submitted that the allegations and evidences available on record suggest that the present case is a case of breach of promise to marry, hence, no prima facie offence under Section 376 IPC and section 3/5 of Dowry Prohibition Act, is made out against the revisionist. The present prosecution has been instituted with a malafide intention for the purpose of harassment and in order to extract money from the revisionist. The opposite party no.2 is older in age. From the evidence on record it would apparent that the opposite party no.2 developed physical relation with the revisionist as per her own sweet will and volition and therefore, she is a consenting party. Being a mature lady and consenting party the question of continuous rape does not arise. Hence, the prosecution of the revisionist in this case is unfounded and not sustainable in the eye of law. He pointed out certain documents and statements in support of his contention. 5. Learned A.G.A. has submitted that the order impugned, in the present revision has been passed after considering entire facts and evidence on record, which suffers from no illegality or infirmity in law and calls for no interference by this Court under its revisional jurisdiction. 6. He pointed out certain documents and statements in support of his contention. 5. Learned A.G.A. has submitted that the order impugned, in the present revision has been passed after considering entire facts and evidence on record, which suffers from no illegality or infirmity in law and calls for no interference by this Court under its revisional jurisdiction. 6. It is pertinent to mention here that application under section 482 No. 28401 of 2015 (Wakeel Ahmad Vs. State of U.P. and another) was filed by the revisionist for quashing of the entire proceeding of the complaint case in question, which was dismissed by the Coordinate Bench of this Court vide order dated 21.9.2015. 7. In the case of H.S. Bains Vs. The State (Union Territory of Chandigarh), AIR 1980 SC 1883 the Apex Court has categorically observed as under:- "The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process of dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. The mere fact that he had earlier ordered an investigation under Section 156 (3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156 (3) and receives a police report under Section 173 (1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190 (1) (b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may taken cognizance of the offence under Section 190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be." 8. Under Section 245 Sub-section (2) Cr.P.C. the Magistrate may at any stage discharge the accused on the ground of technical defect like want of sanction for prosecution, incompetence of the complainant to file complaint and inherent improbability or falsity of the allegations of the complainant. If after appearance the accused can argue and show on the face of the complaint and the evidence recorded under Section 200 and 202 Cr.P.C., that the allegations of the complaint are inherently improbable and false or do not constitute offence, the Magistrate requires no additional evidence for discharging the accused under section 245 (2) Cr.P.C. 9. The Apex Court in Sonu Gupta versus Deepak Gupta & others, (2015) 3 SCC 424 has held as under: "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 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. At the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. Even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial." 10. Thus, legal position is very clear the Magistrate has to prima facie make up his mind on the basis of the material collected during inquiry. 11. From the perusal of the 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 revisionist. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court at this stage. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in aforesaid case. 12. The learned Magistrate has summoned revisionist (accused person) on the basis of preliminary inquiry conducted by him. At this stage, learned Magistrate is not required to conduct a detailed and meticulous inquiry. Further, the learned counsel for the revisionist is unable to show this Court also, about any of the above defects, for discharging the accused under Section 245 Sub-section (2) Cr.P.C. at this stage. 13. At this stage, learned Magistrate is not required to conduct a detailed and meticulous inquiry. Further, the learned counsel for the revisionist is unable to show this Court also, about any of the above defects, for discharging the accused under Section 245 Sub-section (2) Cr.P.C. at this stage. 13. Moreover, the revisionist has got a right of discharge under Section 239 or 227/228, or 245 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court, as per law. 14. Illumined by the principle of law laid down by the Apex Court in the aforementioned decisions, from the perusal of the 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 revisionist. All the submissions made at the bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court, at this stage, under Section 397/401 Cr.P.C. At this stage only prima facie case is to be seen by the learned Magistrate also. 15. There fore, after having very carefully examined, the submissions made by the learned counsel for the parties and perused the material brought on record, I do not find any illegality, impropriety, perversity, infirmity or material irregularity in the impugned order dated 9.9.2016 passed by the learned Judicial Magistrate, Baheri, District Bareilly in Criminal Complaint Case No. 135 of 2014 (Shamim Bani Vs. Wakeel Ahmad) and the present revision has no merit and is liable to the dismissed. 16. The instant revision lacks merit and is accordingly dismissed. 17. However, on the request of the learned counsel for the revisionist, it is directed that if the revisionist surrenders within a period of 45 days before the court below and applies for bail, then his bail application be considered and decided in view of the law laid down by Full Bench of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). 18. State of U.P. reported in 2004 (57) ALR 290 affirmed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). 18. For a period of 45 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 revisionist. 19. Moreover, it is made clear that in case, the revisionist does not appear before the Court below within the aforesaid period, the learned court below is at liberty to take appropriate action against him, as per law.