Ramesh Kumar Mangal and Others vs State of U.P. and Another

Rajesh Chandra, J.—The precise prayer made in this petition is for quashing the proceeding of complaint Case No. 241/9/2008, Rajendra Prasad Chaubey v. Ramesh Kumar and Ors., under Sections 452 and 506, I.P.C. which it is stated are lingering in the court of Judicial Magistrate, Moradabad.

Briefly stated the facts are that in the complaint filed by complainant Rajendra Prasad Chaubey, it is alleged that on 17.12.2007 at about 5 p.m. the accused persons forced their entry into the house of complainant, hurled abuses at his wife, daughter and daughter-in-law; that when his wife protested over the abusive language, the accused persons damaged the door and threatened to kill them. According to the complainant, he tried to lodge the report but police of P. S. concerned did not act upon his report. It is further alleged that on 19.12.2007, the accused persons again entered at the house of complainant at about 10 a.m. and hurled abuses at his mother and sister and attempted to commit assault. Upon the complaint being filed, the statement of complainant was recorded u/s 200, Cr. P.C. and thereafter, the statements of witnesses namely Smt. Nirmala and Kumari Priyanka were recorded. It is in this backdrop that the court below passed the impugned order dated 20.5.2009 summoning the Petitioners for offences under Sections 452 and 506, I.P.C.

I have heard learned Counsel for the Petitioners as also learned A.G.A. and perused the materials on record.

The submissions made by learned Counsel for the Petitioners substantially are that the Petitioner No. 1 Ramesh Kumar Mangal had lodged a report on 16.7.2003 arraying the complainant and his family members as accused persons relating to incident which had occurred on 25.6.2O03 and that matter culminated in filing of charge-sheet for offences u/s 323/504, I.P.C. It is further stated that the present complaint case has been filed as a counter blast to avenge the criminal action initiated against him in the year 2003. The learned A.G.A on the basis of evidence on record contended that ex-facie cognizable offence under Sections 452 and 506, I.P.C. are made out and as such there is no warrant to quash the proceeding which had been commenced on the basis of complaint case.

The crux of what has been argued before the Court is that the Magistrate did not go into probability of conviction qua the evidence on record and further the Magistrate did not take into consideration that the complaint was false and concocted and was the result of earlier complaint made against him by the Petitioners.

It is settled position in law that once the Magistrate takes cognizance of an offence, he takes cognizance of the offence and not the offenders. The summoning of the accused is part of the proceeding initiated by taking cognizance of an offence. It is also settled position in law by a catena of decisions that at the stage of issuing process the Magistrate is mainly concerned with the allegations, made in the complaint or the evidence led in ''support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused and it is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case. In Chandra Deo Singh Vs. Prokash Chandra Bose and Another, it was held by the Apex Court that at the time of taking a decision whether a process should issue against the accused or not what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant so as to justify the issue of process and commencement of proceedings against the accused and not whether the evidence is sufficient to warrant his conviction. In Smt. Nagwwa v. Veerannna Shivalingappa Konjalgi and Ors. (1976) Supp SCR 123, the Apex Court observed as under:

It is true that in coming to a decision as to whether a process would be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint if proved would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an enquiry u/s 202 of the Code of Criminal Procedure.

It would thus transpire that at this stage, only enquiry could be made whether the complaint did contain allegations of any offence. Upon scrutiny of the materials on record and also the impugned order, it is quite clear that ingredients of offences complained of in the complaint are made out and therefore there is no warrant to quash the proceeding or set aside the order of the Magistrate concerned.

However, in the facts and circumstances of the case, it is observed that grievance that there is no probability of conviction vis-a-vis the materials on record can be agitated by the Petitioners before the Magistrate at the stage of Section 245, Cr. P.C and in case any such point is pressed into service by the Petitioners at that stage, the learned Magistrate shall pass speaking orders dealing with the grievances.

In view of the above, the application fails and is dismissed accordingly.

However, it is provided that in case the Petitioners surrender in the Court, within three weeks from today, their applications for bail shall be disposed of in view of the judgment of this Court in Amarawati and Another (Smt.) Vs. State of U.P., as also the order of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. Criminal Appeal No. 538 of 2009 dated 23.3.2009: 2009 (2) ACR 2063 (SC).