Criminal Procedure; Pragti Devi Vs. State of U.P. [Allahabad High Court, 04-11-2016]

Criminal Procedure Code, 1973 Summoning of an accused in a criminal case – At the time of passing order on point of cognizance and summoning, the Magistrate is expected to consider as to whether prima facie evidence for summoning the accused are available or not. But this consideration has to be after application of judicial mind, and not blindly. Magistrate is not expected only to read the words uttered by witnesses under sections 200 or 202 CrPC, but he also is required to use its judicial mind before passing any order and not to act like a silent spectators of the words uttered by the witnesses, who were not going to be cross-examined at the stage of evidences under Chapter XV CrPC.

# Criminal Case

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL REVISION No. – 2777 of 2016

Revisionist :- Pragti Devi Vs. Opposite Party :- State Of U.P. & 8 Others

Counsel for Revisionist :- Narendra Deo Rai; Counsel for Opposite Party :- G.A.

Hon’ble Pramod Kumar Srivastava,J.

1. This revision has been preferred against the order dated 12.8.2016 passed by Judicial Magistrate, Deoband, Saharanpur, by which final report no. 67/2014 forwarded in case crime no. 250/2014 relating to P.S. Nagala and complaint case no. 179/2015 (Km. Pragti Vs. Satendra and others) were decided, and by this order the final report was accepted and complaint case no. 179/2015 was dismissed.

2. Km. Pragti had moved application under section 156(3) Cr.P.C. which was registered as FIR (case crime no. 250-D/2014). According to this FIR, Himani daughter of informant Vipin Tyagi had performed marriage with Mukul son of Surendra. Due to this, enmity developed between the families of these two persons. On 31.5.2014 at about 4:30 P.M., Satendra, Nathiram (deceased), Amit (deceased) and six other persons had attacked upon family members of informant with sticks, clubs and country-made pistols. In this incident, Nathiram and his son Amit died on spot and Surendra, Sudeshna, Himani and Mukul were sustained injuries. For this incident, police had challaned injured persons Surendra Tyagi, Sudeshna, Mukul and Himani for offences under sections 302, 120B, 307 IPC in case crime no. 170/2014, but report of injured Surendra Tyagi was not lodged by police.

3. After investigation, police had submitted charge-sheet in case crime no. 170/2014 against accused of this case for offences under sections 307/34, 120B, 506 IPC, but final report was submitted by Investigating Officer in case crime no. 250C/2014 and report was also submitted by I.O. for initiating proceedings under section 182 IPC for lodging false report by Km. Pragti.

4. Against final report in case crime no. 250C/2014, its complainant Km. Pragti had filed protest-petition with request that said protest petition be registered as complaint case. After hearing on this application/protest petition dated 26.8.2014, the Judicial Magistrate/Civil Judge (Junior Division), Deoband, Saharanpur had passed order dated 9.6.2015, by which protest-petition was rejected and it was directed that report of police be registered for prosecuting case under section 182 IPC and informant Km. Pragti was directed to appear in the court.

5. Against said order dated 9.6.2015 of Magistrate court, criminal revision no. 402/2015 (Km. Pragti Vs. State of U.P. & others) was preferred, which was heard and allowed by the judgment dated 10.3.2016 of Additional Sessions Judge, Court No.-9, Saharanpur with direction that order dated 9.6.2015 of Judicial Magistrate, Deoband is set aside and Magistrate is directed to dispose of final report of case crime no. 250C/2014 with complaint of complainant Km. Pragti. Thereafter, in protest petition/complaint filed by Km. Pragti (complaint case no. 179/2015 (Km. Pragti Vs. Satendra & others) evidences of complainant Km. Pragti under section 200 and witnesses Surendra Tyagi, Himani, Mukul, Sudeshna, Dr. Virendra Singh (medical officer) were recorded under section 202 CrPC. Thereafter, the trial court had afforded opportunity of hearing on final report no. 67/2014 forwarded in case crime no. 250A/2014 and complaint case no. 179/2015. After concluding said hearing, the trial court had passed order dated 12.8.2016, by which final report in case crime no. 250C2014 was accepted and complaint case no. 179/2015 was dismissed. Against this impugned order dated 12.8.2016 of Judicial Magistrate, Deoband, Saharanpur, present revision has been preferred by complainant Km. Pragti Devi daughter of Surendra Tyagi.

6. Learned counsel for the revisionist contended that in complaint case no. 179/2015 the complainant and her adduced witnesses had proved the case that the opposite parties no. 2 to 9 and the deceased were aggressor, who had assaulted and caused serious injuries on body of victims of this complaint case and during this altercation the two deceased were hit by their fellow culprits and died. But these facts were not properly appreciated by trial court at the time of passing impugned order.

7. Learned counsel for the revisionist relied on judgment of

# Km. Nisha Sharma and another v. State of U.P. and another, 2016 (92) ACC 364

in which this court had discussed the principle that while summoning an accused, the court has to see prima facie evidence, which means evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. In said judgment. This court had also held that enquiry under section 202 CrPC is limited only to ascertain the truthful or falsehood of allegations made in complaint and for ascertaining as to whether on materials placed by the complainant, whether the prima facie case was made out for summoning the accused or not. His submission is that in present matter when there were prima facie evidence available before trial court about the guilt of proposed accused persons (present OP No. 2 to 9), then the impugned order of dismissing the complaint and accepting the final report was totally erroneous, which should be quashed.

8. Per contra, learned counsel for OP No. 2 to 9 submitted that above mentioned judgment of Km. Nisha case (supra) as relied by counsel for revisionist was not properly studied by him because as this judgment relates to point of speaking order as well as on point of application of judicial mind by Magistrate at the time of passing the order of cognizance and summoning. His submission was that in said judgment, this court had rightly held that at the time of passing of order of cognizance and summoning, which a serious matter, the order of Magistrate is must reflect application of his mind, who is expected to carefully scrutinize the evidence brought on record and thereafter pass order. His contention was that in this matter, learned Magistrate had properly appreciated facts, circumstances and materials available before it in light of direction of revisional court dated 10.3.2016 and thereafter it had passed impugned order in accordance with law without any infirmity. Therefore, this revision should not be admitted.

9. It is a fact that at the time of passing order on point of cognizance and summoning, the Magistrate is expected to consider as to whether prima facie evidence for summoning the accused are available or not. But this consideration has to be after application of judicial mind, and not blindly. Magistrate is not expected only to read the words uttered by witnesses under sections 200 or 202 CrPC, but he also is required to use its judicial mind before passing any order and not to act like a silent spectators of the words uttered by the witnesses, who were not going to be cross-examined at the stage of evidences under Chapter XV CrPC. Even in the aforesaid judgment of Km. Nisha case (supra), this court had cited certain verdicts of Hon’ble Apex Court, which are again reiterated.

10. In ruling

# M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118

Hon’ble Supreme Court held :-

“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. 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.”

11. In

# Paul George v. State, 2002 Cri.L.J. 996

Hon’ble Supreme Court held :-

“We feel that whatever be the outcome of the pleas raised by the appellant on merit, the order disposing of the matter must indicate application of mind to the case and some reasons be assigned for negating or accepting such pleas.

– – – – –

It is true that it may depend upon the nature of the matter which is being dealt with by the Court and the nature of the jurisdiction being exercised as to in what manner the reasons may be recorded e.g. in an order of affirmance detailed reasons or discussion may not be necessary but some brief indication by the application of mind may be traceable to affirm an order would certainly be required. Mere ritual of repeating the words or language used in the provisions, saying that no illegality, impropriety or jurisdictional error is found in the judgment under challenge without even a whisper of the merits of the matter or nature of pleas raised does not meet the requirement of decision of a case judicially.”

12. In

# S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89

the Apex Court had held :

13. “Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words “after considering” and “the Magistrate is of opinion that there is no sufficient ground for proceeding”. These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words “if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding”. The words “sufficient ground for proceeding” again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed.”

14. In light of above mentioned legal position, a perusal of impugned order dated 12.8.2016 reveals that at the time of passing the impugned order dated 12.8.2016 learned Magistrate had considered the facts of final report filed in case crime no. 250A/2014, P.S. Nagala and facts of complaint case no. 179/2015 together because revisional court had directed so, and also because both the cases were initiated on the basis of complaint filed by same complainant Km. Pragti (present revisionist). Thereafter, trial court had appreciated facts, evidences and circumstances in the matter, which were available before it. Said court also considered the arguments filed on behalf of complainant-revisionist and facts pointed out on his behalf, and after it said court had reached to its inferences and passed impugned order. The finding of trial court in this matter is mainly based on appreciation of facts and conclusion reached by it, is such a manner whichshows that it may be one of the conclusions of those evidences. Learned Magistrate had found that evidence of complainant Km. Pragti was hearsay evidence and also gave reason as to why evidence of other witnesses is not being relied, including the observation of inconsistency and incorrectness in statement of witnesses. Trial court had also considered the contention of self defence on part of complainant side and gave its reason for disbelieving them. Thus, the finding of learned Magistrate was based on appreciation of facts after application of judicial mind as enumerated by Hon’ble Apex court in above mentioned judgments.

15. In

# Jagannath Choudhary & Ors. v. Ramayan Singh & another, AIR 2002 SC 2229

the Apex Court had held as under:-

“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.”

– – – –

“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.”

16. From perusal of record, impugned order and the facts of the cases concerned, it appears that the findings of fact given in impugned order, before reaching to the inference for passing impugned order, are based on facts and such inferences which may be probable. Said order cannot said to be infirm or perverse, so no inference can be had in impugned order by exercise of revisional jurisdiction.

17. In view of the above, this revision is dismissed.

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