Pradeep Kumar Rai and Others vs State of U.P. and Another

Manoj Misra, J.—Heard learned counsel for the petitioners and learned A.G.A for the State.

By this writ petition, the petitioners have challenged the order dated 4.8.2012 passed by Additional Session Judge, Court No.5, Ghazipur in Crl. Revision No. 315 of 2011 as also the summoning order dated 19.10.2011 passed by Judicial Magistrate, Court No.2, Mohammadabad, Ghazipur in Complaint Case No. 196 of 2011, under sections 380, 452, 504 and 506 I.P.C.

The main contention of the learned counsel for the petitioner is that the revisional court has not entered into the merits of the summoning order by holding that the summoning order is in the nature of interlocutory order, therefore, no revision lies against it. No doubt the Apex Court in the case of Rajendra Kumar Sitaram Pandey and others Vs Uttam and another, reported in AIR 1999 SC 1028, has held that a summoning order is in the nature of an intermediate order, therefore, a revision lies against the same, but this alone cannot be a ground to set aside the summoning order passed by the court of Judicial Magistrate, court No.2, Mohammadabad, Ghazipur in Complaint Case No. 196 of 2011, which has also been challenged in this petition.

Thus, in order to test the validity of the summoning order, I have perused the complaint and the statement of the witnesses recorded in support thereof which are on record. A perusal of the complaint and the statement of the witnesses recorded in support thereof do clearly make out a prima facie case of commission of an offence by the petitoners, who have been summoned by the court below. I, therefore, do not find any good ground to quash the summoning order.

All the submission made at the bar relates to the disputed question of facts, which cannot be adjudicated upon by this Court under writ jurisdiction. The disputed defence of the accused cannot also be considered at this stage. Moreover, the petitioners have 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 they are free to take all the submissions in the said discharge application before the Trial Court.

The prayer for quashing the summoning order is refused.

However, it is provided that if the petitioners appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P, reported in 2004 (57) ALR 290 as well as judgement passed by Hon''ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 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 petitioners. However, in case, the petitioners do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

With the aforesaid directions, this petition is finally disposed off.