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2017 DIGILAW 100 (ALL)

Raj Kumari Gupta v. State of U. P.

2017-01-09

ANIL KUMAR SRIVASTAVA-II

body2017
JUDGMENT Anil Kumar Srivastava-II,J. 1. Heard Sri Krishan Kumar Singh, learned counsel for the petitioners, learned AGA for the State and perused the record. Opposite party no.2 was served but he is not represent today. 2. Learned counsel for the petitioners submits that the complaint filed by the complainant is counter-blast of the FIR lodged by Smt. Rajni Gupta, younger sister of applicant no.1. It is submitted that Rajni Gupta wife of Rajiv Kumar Gupta who is real daughter-in-law of opposite party no.2 has lodged an FIR at Case Crime No.2810 of 2013, under Sections 498A, 323, 506 IPC against the opposite party no.2 and her family members. 3. It is further submitted that signatures of Rajni Gupta were obtained on blank papers and Case No.1050/12/13, under Section 125 Cr.P.C. was also filed by Rajiv Gupta in Family Court in Kannauj. As a counter blast, this complainant has been lodged. It is further submitted that story, as alleged, in application filed under Section 156(3) Cr.P.C. is unbelievable. Statement of complainant as well as witnesses P.W.1 Anil Kumar Shukla, P.W.2 Karuna Shankar have major contradictions. It is further submitted that learned Magistrate has no jurisdiction to summon the accused without making a proper enquiry as per the amendment incorporated in Section 202 Cr.P.C. 4. Learned AGA opposed the prayer. 5. Application under Section 156(3) Cr.P.C. was filed by the complainant which was treated as a complaint wherein statement of complainant under Section 200 Cr.P.C. was recorded. Statement of P.W.1 Anil Kumar Shukla and P.W.2 Karuna Shankar were also recorded under section 202 Cr.P.C. 6. Section 202 Subsection (1) Cr.P.C. was amended with effect from 23.6.2006. Section 202 (1) reads as under: "202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which is is authorised 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 not there is sufficient ground for proceeding;" 7. So far as arguments regarding territorial jurisdiction is concerned, I do not find any force in the argument. Learned Magistrate has postponed the issuance of summons, primarily, on the basis of complaint under section 200 Cr.P.C. as the accused were residing outside the jurisdiction of the Magistrate. When the Magistrate was satisfied on the basis of inquiry conducted by him under sections 202 Cr.P.C., thereafter, Magistrate passed an order for summoning, taking cognizance and summoned the accused. Hence, compliance of the provisions of Section 202 Cr.P.C. is duly made by the learned Magistrate. 8. It has been held by Hon'ble the Apex Court in Sonu Gupta vs. Deepak Gupta and others (2015)3 SCC 424 ; has held Para 8 and 9 as under: "8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. 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 learned Magistrate is not required to consider the defence version or materials or arguments nor is he 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. 9. It is also well settled that cognizance is taken of the offence and not the offender. Hence 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, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. But such exercise is required only at a later stage, as indicated above 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. It is also a settled proposition of law that 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. 9. Hon'ble Apex Court has further issued the guidelines in exercise of the power conferred by the High Court under Section 482 Cr.P.C. and reiterated the guidelines as provided in the case of State of Haryana vs. Bhajan Lal 1992 SCC (Cri) 426, in Thermax Ltd. V. K.M. Johny (2011) 13 SCC 412 ; in para 14 of the Judgment of Sonu Gupta (supra) which was held as under: 14. The learned counsel also placed reliance upon judgments in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and also in Thermax Ltd. v. K.M. Johny [ (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650] in support of the proposition that power to quash criminal prosecution is justified where a criminal proceeding is instituted with mala fide or ulterior motives. In Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] this Court did indicate in para 102, seven kinds of cases where court may exercise power to quash criminal prosecution but in respect of the seventh category relating to mala fides, this Court used the expression -- "manifestly attended with mala fide" and further explained in paras 103 and 104 that the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. Paras 103 and 104 are reproduced hereunder: (Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , SCC p. 379) "103. Paras 103 and 104 are reproduced hereunder: (Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , SCC p. 379) "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. 104. It may be true, as repeatedly pointed out by Mr Parasaran, that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding a high office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of the complainant. In such a piquant situation, the question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions of the Penal Code, namely, under Section 182 or 211 or 500 besides becoming liable to be sued for damages." 10. Learned Magistrate has recorded a finding that he is prima facie, satisfied to summon the accused. So far as question of counter blast is concerned that can be seen on a subsequent stage but so far as this stage is concerned, at the stage of summoning of the accused, plea of the accused could not be looked into by the learned Magistrate. 11. Having considered the rival contention and record of the case, I am of the considered view that the learned Magistrate has rightly exercised his jurisdiction. Impugned order does not suffers from any illegality or perversity. Accordingly, petition lacks merit and is liable to be dismissed. Interim order, if any, is vacated.