Smt. Prabha Kushwaha vs State of U.P. and Another

D.R. Azad, J.—Heard learned Counsel for the applicant, learned A.G.A. for the State and perused the material placed on record.

The present criminal revision has been preferred against the judgment and order dated 30.4.2008, passed by the Special Judge (D.A.A.) Jhansi in Special Smt. Prabha Kushwaha v. Bhagwat Narain and Ors., Special Case No. 32 of 2008 rejecting the protest petition filed by the revisionist and accepting the final report submitted by the police after investigation of Case Crime No. 4 of 2008 under Sections 387, 392, 452 and 506, I.P.C. Police Station Samdhar, district Jhansi.

The brief facts of the case is that an application u/s 156(3), Code of Criminal Procedure. has been moved by the revisionist at the police station Samdhar, district Jhansi with regard to the incident dated 26.12.2007 which was occurred at about 5 p.m. According to the prosecution case, when the applicant was in her house and at that time one Uddu Barar son of Gokali and Kali Charan son of Mansha Ram were also there. At that time, accused Ex-pradhan Bhagwat Narain Upadhyay alongwith 2-3 persons having gun in their hands entered in the house of the applicant and demanded Rs. 20,000 per month from the applicant and threatened that in case she will not provide Rs. 20,000 per month to the opposite party No. 2, she could not perform the duty of Pradhan. After denial by the applicant-revisionist, accused persons snatched the gold chain and gold ring of the revisionist. In this regard, revisionist moved an application to the police station but her report was not registered then she moved an application to the Senior Superintendent of Police, Jhansi on 27.12.2007 but no report of the revisionist has been lodged. Thereafter, the applicant moved an application u/s 156(3), Code of Criminal Procedure before the learned Magistrate. On the aforesaid application, the learned Special Judge directed the police station concerned to register the case and investigate the matter. After investigation of the case by the police, final report has been submitted by the police and on the aforesaid final report, notice was issued to the revisionist for acceptance of the final report. The revisionist filed protest petition against the final report. The learned Magistrate treating the protest petition as complaint case, directed the revisionist to adduce the evidence. In support of the case, revisionist examined herself on 29.3.2008 u/s 200, Code of Criminal Procedure and witnesses Uddu Barar and Kali Charan have been examined on 7.4.2008 u/s 202, Code of Criminal Procedure The learned Magistrate on 30.4.2008, passed an order on the complaint of the revisionist, dismissed the complaint and accepted the final report.

Being aggrieved against the order dated 30.4.2008, the present criminal revision has been preferred before this Hon''ble Court by the revisionist.

Learned Counsel for the revisionist contended that from the evidence of the record, prima facie cognizable offence under Sections 387, 392, 452 and 506, I.P.C. is fully made out against the accused-opposite party No. 2, therefore, the accused is liable to be summoned for facing trial.

It is further contended by the learned Counsel for the revisionist that once from the perusal of the evidence adduced by the complainant in support of the allegations made in the complaint, or first information report, a prima facie cognizable offence is made out then the learned Magistrate is legally bound for taking cognizance against the accused.

Per contra, learned A.G.A. has supported the judgment and order dated 30.4.2008.

I have given my thoughtful consideration to the aforesaid submission made by the learned Counsel for the revisionist and the learned A.G.A. and after going through the record of Special Case No. 32 of 2008, I agree with the learned Counsel for the revisionist that the learned Special Judge has committed gross illegality in dismissing the complaint.

The instances where Magistrate can dismiss complaint u/s 203 of the Code are:

(a) Whether, the allegations made in the complaint or statement of witnesses recorded in support of complaint taken at their face value make out absolutely no case against the accused ;

(b) The complaint does not disclose the essential ingredients of offence which is alleged against the accused ;

(c) Whether, the allegations made in the complaint are presently abused or inherently improper so that no prudent person can come to the conclusion that there is sufficient ground for proceeding against the accused ;

(d) Whether, complaint suffers from fundamental illegal defects ; and

(e) Whether, complaint is not by competent authority only empowered to make complaint.

While, dismissing the complaint, the Magistrate has to see prima facie sufficient ground for proceeding in the matter. If it is not there, only then he could dismiss the complaint. In the present case, learned Magistrate has not properly appreciated the evidence adduced by the complainant and erred in dismissing the complaint.

It is settled legal position that at the stage of passing order u/s 203 or 204, Cr.P.C. only prima facie case has to be seen and not whether the evidence as adduced is to result in conviction of the accused person. In the case of Nirmaljeet Singh Hoon v. State of West Bengal and Anr. X (1973) ACC 181 (SC), while considering the scheme of Sections 200 and 203, Code of Criminal Procedure, it has been held by Hon''ble Apex Court that the section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding he may dismiss the complaint.

In the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, the Hon''ble Supreme Court held that at the stage of enquiry u/s 202, Code of Criminal Procedure, the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. XIII (1976) ACC 225(SC), while considering the scope of enquiry u/s 202, Code of Criminal Procedure Hon''ble Supreme Court has held that it is extremely limited only to the ascertainment of the truth or falsehood of the allegation made in the compliant (a) on the materials placed by the complainant before the Court (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out (c) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In that case, it has been held also by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused.

In the case of S. W. Palanitkar and Ors. v. State of Bihar and Anr. 2002 (1) JIC 232 (SC) : XLIV ( 2002) ACC 168: 2002 (1) ACR 219 (SC), the Hon''ble Supreme Court has held that at the stage of Sections 200 and 203, Code of Criminal Procedure searching sufficient ground to convict is not necessary.

In view of the legal position, hereinabove, mentioned it is clear that after the enquiry as contemplated under Sections 200 and 202, Code of Criminal Procedure if the Magistrate is satisfied that there is sufficient evidence to proceed against the accused, he may issue summon or warrant as the case may be and at that stage, the Court is not required to evaluate the evidence as if it was finally deciding the case.

In the present case, the learned Special Judge dismissed the complaint of the complainant only on the ground of presumption that the matter relates to the election and no injury report is available on the record.

In the circumstances, this criminal revision is allowed. The order dated 30.4.2008, passed by the learned Special Judge (D.A.A.), Jhansi is set aside. The matter is remanded back with the direction that the learned Special Judge (D.A.A.) shall consider the evidence as given by the complainant and thereafter decide the case in accordance with the provisions of law.

No order as to costs.