Meena Devi v. Kamlesh and others), under Sections
Case Details
Neutral Citation No. - 2024:AHC:154208 Court No. - 75 Case :- APPLICATION U/S 482 No. - 29890 of 2024 Applicant :- Ratan Kumar Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shiva Priya Prasad Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Legal Reasoning
7. The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process. Section 202 empowers the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. For ready reference of Section 202 Cr.P.C. is reproduced hereinbelow:- "202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] [Inserted by Act 25 of 2005, Section 19 (w.e.f. 23-6-2006).] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made, - (a)where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b)where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2)In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3)If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station except the power to arrest without warrant." 8. Hon'ble Supreme Court in the case of Shivjee Singh v Nagendra Tiwary & others, reported in (2010) 7 SCC 578 on the point of Section 202(2) Cr.P.C. has observed as follows: "Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to S.202 (2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint. The use of the word 'shall' in proviso to Section 202 (2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. The word 'all' appearing in proviso to S.202 (2) is qualified by the word 'his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceedings against the accused." 9. As regards submission of the counsel for the applicant regarding enquiry as required under Section 202 Cr.P.C., perusal of the provisions goes to show that where the statements have been recorded under Sections 200 and 202 Cr.P.C., the enquiry was not required in the matter. In the present case, statements have already been recorded, therefore, no enquiry was required. He further submits that there is no provision for signature of the complainant on statement U/s 200 CrPC as annexed at page 42 of this application, wherein initial of opposite party no.2 are there with date being 05.08.2023. He further submits that minor variations in the statements would not be beneficial to alleged accused in serious offences like rape, murder. 10. In the case in hand, there is no illegality in the summoning order as the incident has taken place at Etah, therefore, the complaint has been lodged within the jurisdiction of the Court where the incident has taken place. 11. The submission made by learned counsel for the applicant regarding enmity with Clerk of the concerned court, the same has no legs to stand as the allegation is upon the Court being biased due to a Clerk of the court being inimical to the applicant. There is no possibility of believing the aforesaid allegation as made by counsel for the applicant as it is the court concerned, which has passed the order and not the Clerk of the court. 12. In view of the foregoing discussions, the prayer for quashing the impugned summoning order dated 03.10.2023 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage. 13.The present application has no merit and is, accordingly, rejected. Order Date :- 21.9.2024 Jitendra/-
Arguments
1. Heard Mr. Shiva Priya Prasad, learned counsel for the applicant and learned AGA for the State. 2. The present application under Section 482 Cr.P.C. has been filed for quashing the impugned summoning order dated 03.10.2023 as well as the entire proceedings of Complaint Case No.14516 of 2023 (Meena Devi vs. Kamlesh and others), under Sections376D, 377, 504, 506, 120B IPC, Police Station Jaithra, District Etah, pending before the court of Additional Chief Judicial Magistrate, Court No.18, District Etah. 3. Brief facts of the case are that a complaint has been filed by the opposite party no.2 against Smt. Kamlesh, Subodh and Ratan Sharma (applicant herein) with the allegations that the aforesaid persons were known to opposite party no.2, therefore, as plan made by Kamlesh, they decided to go to Vrindavan. When such plan was made, the opposite party no.2 expressed her inability to join them as she didn't have money. On the aforesaid, the alleged accused Kamlesh asked her not to take tension as they will make all the arrangements and will enjoy together. On 22.06.2023 at about 09:00 a.m., the opposite party no.2 alongwith the aforesaid persons proceeded to Vrindavan on the vehicle of Bhoop Singh bearing vehicle No.UP 81 AN 5051. Subodh was driving the car. They proceeded from Kasganj to Etah and all got down from the vehicle near Etah Roadways. They returned after 15 minutes having bottles of Rs 20 Thumsup, black colored cold-drink. A person named Sanjay came from Peepal Adda Upkar Nagar Etah and everyone moved towards Aliganj. When the opposite party no.2 questioned as to why they were going towards Aliganj, she was informed by Subodh that they had to pick up their relatives from Jaithra after which they will proceed towards Vrindavan. The aforesaid persons insisted the opposite party no.2 to enjoy the cold drink otherwise it will become hot. Despite the request of opposite party no.2, that she does not want to have the cold drink, on repeated insistence of the aforesaid persons, she had the cold drink after which she became unconscious. When she regained consciousness, she found herself in naked condition. It has further been alleged that Subodh Kumar stopped the vehicle near Shiv Temple, one kilometer away from Bisaulia, and committed wrong act with her, video of which was also made. The aforesaid video was shown to opposite party no.2 where she found that all the alleged persons had done wrong act with her. In the video, she found that Kamlesh was holding her hands from behind and the aforesaid persons had committed wrong act as well as unnatural act with her. After seeing the video the aforesaid persons stated that if she shared the aforesaid incident with anyone, they will make the video viral. They also abused her and threatened to kill her. Being alone, she did not speak out, however, after returning back to her house, she informed her husband about the incident, after which she went to Jaithdra Police Station to lodge a report, but Head Munshi present there asked them to seek orders from superior officials then only the report will be lodged. Thereafter, on 24.06.2023, an application was given before S.S.P., Etah, but nothing was done, therefore, the present complaint was filed on 7.07.2023. After recording statements U/s 200 and 202 Cr.P.C., the applicant alongwith two others have been summoned by order dated 03.10.2023. Hence the present application has been filed. 4. Learned counsel for the applicant submits that the present case has been lodged with false and frivolous allegations due to ulterior motive. He further submits that though the opposite party no.2 had gone to Kasganj and has returned to Kasganj, but the complaint has been lodged at Etah. He further submits that prior to summoning the applicant, no enquiry as required under Section 202 Cr.P.C. has been conducted by the concerned Magistrate before issuing process. There are variations in the statements of the witnesses as recorded. He further submits that the opposite party no.2 without lodging an FIR has proceeded to file a complaint in place of moving an application U/s 156(3) Cr.P.C. He further submits that one Chand Singh is Clerk in the court concerned from where the summons have been issued, who was inimical to applicant as a case under Section 138 N.I. Act was lodged by the applicant against Sanjay Singh. Therefore, annoyed by the aforesaid, the summons have been issued. Hence the summoning order as well as the entire proceedings may be quashed. 5. On the other hand, learned AGA submits that there is no illegality and infirmity in the order impugned, therefore, no interference is required by this Court. 6. I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application.