Nirmala Kushwaha v. Suresh Kushwaha), under Sections
Case Details
Court No. - 71 Case :- CRIMINAL REVISION No. - 1464 of 2004 Revisionist :- Suresh Kushwaha And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- B.N. Rai,Adarsh Kumar Counsel for Opposite Party :- Govt. Advocate,Chandra Dutt,K.K.Kushwaha,V.K. Kushwaha Hon'ble Samit Gopal,J. Matter taken up in the revised list. No one appears on behalf of the revisionist(s) to press this revision.
Legal Reasoning
It is trite that 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 a prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence in the case, the Magistrate cannot consider whether the material before him was credible or reliable or not, the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not. This Court on perusal of the material finds that the averments thereof make out a case of commission of cognizable offence, prima facie for summoning of the accused persons. There is nothing on record to show as to how the summoning order suffers from any illegality or perversity or it is an improper exercise or that any case for summoning the accused person(s), was not made out, even prima facie, on the basis of the averments in the matter and the material on record. The plain position is that in a revision against the summoning order it has to be considered whether there was anything illegal in the summoning order passed by the Magistrate on the basis of the material placed before him. If there is such prima facie material, as obviously is present on the record in this case, then it is not open for this Court to take into consideration the extraneous material filed from the side of the accused-revisionist(s) along with the revision petition. There is no provision for placing on record additional material in the revision against the summoning order and the Court would be travelling beyond its jurisdiction if it relied on any extraneous material other than the material led before the Magistrate. It is always open to the accused to place material before the Magistrate at the trial which may knock the bottom out of the prosecution case. Any such material cannot be looked into at this stage to judge whether the material led before the Magistrate was credible or reliable or not. In a Criminal Revision (under Section 397 Cr.P.C.) the same principles shall apply when challenge is made to the summoning order or proceedings as under 482 Cr.P.C. The principles of quashing have been settled by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706, Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : Criminal Appeal No(s). 296 of 2021 [Arising out of SLP (Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC OnLine SC 206 and M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others : (2020) 10 SCC 118. The order passed by the Magistrate is in conformity with the material on record and the settled law. This Court does not find any illegality in the orders under challenge. The present revision is devoid of any merit. The prayers for quashing the summoning order and the proceedings of the case, are hereby refused. The revision is dismissed. Interim order, if any, stands vacated. It appears that the trial is pending since 2004. If the trial of the aforesaid case has not yet been decided, the trial court shall make all the endeavour to decide/conclude the same within a time frame. The outer limit of the same shall be six months. The trial court shall proceed in the matter in accordance with Section 309 Cr.P.C. and in view of the principles as has been laid down in the judgement of Apex Court in the cases of Shailendra Kumar Vs. State of Bihar: (2002) 1 SCC 655; Vinod Kumar Vs. State of Punjab: (2015) 3 SCC 220, Hussain and Another Vs. Union of India: (2017) 5 SCC 702 and Rajesh Yadav Vs. State of U.P. : Criminal Appeal No. 339-340 of 2014 (judgment dated 06.02.2022), subject to any legal impediment. However, if there is some legal impediment, the trial judge may after considering all those shall decide the same expeditiously after informing the reasons on the administrative side of this Court. It shall initiate all possible steps and measures to ensure the presence of the witnesses for speedy disposal of the trial. The District and Sessions Judge concern is directed to ensure: (i) The compliance of this order in its true spirit. (ii) If the trial court is vacant, the aforesaid case shall be transferred/assigned to any other court forthwith with a direction to comply with this order effectively. (iii) When the trial is concluded, a report of the same shall be sent on the Administrative side to the Registrar General of this court which shall be placed in the file of this case after making a note of the same in the order- sheet. Copy of this order be immediately communicated to the concerned court and also to the concerned District and Sessions Judge by the Registrar General of this Court. The District and Sessions Judge is further obliged to periodically monitor the old cases so that justice may be done to all the parties. Order Date :- 24.2.2022 AS Rathore (Samit Gopal,J.) Digitally signed by ABHISHEK SINGH RATHOR Date: 2022.03.02 17:58:17 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Sri Chandra Dutt, Sri K.K.Kushwaha and Sri V.K. Kushwaha learned counsels for the opposite party No.2 are not present even when the matter is taken in the revised list. Sri Satish Kumar Singh, learned counsel for the State is present. The present criminal revision under Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been filed by Suresh Kushwaha, Rakesh Kumar Kushwaha, Smt. Nidhi Kushwaha, Vidhi Chandra Kushwaha, Smt. Smt. Kushwaha and Ramesh Kumar Kushwaha with the prayers to allow this revision and set aside the order dated 19.02.2004 passed by A.C.M.M. IInd Kanpur Nagar in Case No. 1565 of 2004 (Nirmala Kushwaha vs. Suresh Kushwaha), under Sections 498-A, 312, 323, 504, 506, 120-B I.P.C. and 3/4 Dowry Prohibition Act, Police Station Kalyanpur, District Kanpur Nagar. Heard learned counsel for the State and perused the records.