Bhupendra Pharasi & Others vs State Of Uttarakhand & Another

Lok Pal Singh, J

Both These criminal misc. applications have been preferred by the applicants under Section 482 of Cr.P.C. for quashing of the charge-sheet dated 28.07.2003 as well as the summoning order dated 16.10.2003.

Brief facts of the case are that an F.I.R. has been lodged against eight accused persons including present applicants, namely, Bhupender Pharasi and Het Ram, alleging therein that on 23.022003 at bout 11.30 A.M., the accused persons came in the locality of the complainant and set fore huts on fire. Thereafter, the accused persons run away from the spot. The allegation against the applicants prima facie is that they assaulted the wife of complainant. The F.I.R. was registered as Crime No. 45 A of 2003 in respect of offences punishable under Sections 147, 323 & 436 I.P.C.. Matter was investigated and on completion of investigation, charge sheet was filed against the applicants under the aforesaid sections. On submission of charge-sheet, Judicial Magistrate has taken cognizance in the matter and summoned the applicants to face trial.

Learned counsel for the applicants would submit that it is alleged in the F.I.R. that huts of Kamal, Anil, Mahboob and Anita were set on fire, but none of the alleged owner of the huts, namely, Kamal, Anil, Mahboob and Anita have been examined under Section 161 Cr.P.C.. Thus, it is the contention of learned counsel for the applicants that these persons are not in existence. Learned counsel for the applicants would further submit that the summoning order passed by the trial court in respect of offence punishable under Section 436 I.P.C. is illegal as from the averments of the F.I.R. no case is made out against the applicants in respect of the said offences.

I have heard learned counsel for the parties and have gone through the entire material available on file.

Perusal of the FIR would reveal that the complainant has made specific allegations against the applicants. Impugned summoning order would also reveal that learned Magistrate has recorded its satisfaction before taking cognizance in the matter.

Hon'ble Apex Court in the case of Sonu Gupta1 has held that at the stage of taking cognizance and summoning the accused, the Magistrate is required to apply his judicial mind only with a view to take cognizance on the offence or to find whether prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is not required to discuss the matter in detail or to consider the defence version or material before him. Neither the Magistrate is required to evaluate minutely the merits of the materials or evidence of the complainant nor is he required to undertake such an exercise at that stage to find out whether the material placed by the complaint will lead to conviction or not. The relevant paragraphs are quoted hereunder:-

"7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts below or in this Court lest it prejudices one or the other party in future.

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 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."

It is true that High Court has inherent powers under Section 482 Cr.P.C. but it is also equally true that it has to be exercised sparingly, carefully and with caution when there appears abuse of process of law. In the present case, a perusal of the record would reveal that on the complaint made by the complainant the Investigating Officer has submitted the charge-sheet alongwith statement of witnesses and injury report before the Magistrate and the Magistrate having considered the complaint and material placed before him, after due application of mind, has recorded its satisfaction and has thereafter summoned the applicant.

In view of the above, there is no merit in the present miscellaneous applications under Section 482 Cr.P.C. Same is accordingly dismissed.

Interim order dated 27.04.2011 is hereby vacated.

Intimation in this regard be sent to the court concerned.