The court affirmed that a Magistrate must ensure a prima facie case exists before summoning accused, emphasizing careful scrutiny of evidence at the initial stage.

Judgment

Mr. Harpreet Singh Brar, J.

The petitioner has approached this Court by filing present petition under Section 482 of the Code of Criminal Procedure seeking quashing of impugned order dated 06.06.2015 (Annexure P-2) passed by the learned Judicial Magistrate 1st Class, Gurgaon by which the complaint filed by the petitioner against respondent Nos.2 and 3 has been dismissed as well as the impugned order dated 24.10.2016 (Annexure P-3) passed by learned Additional Sessions Judge, Gurgaon vide which the revision petition against the aforesaid order has also been dismissed.

2. The facts, in brief, are that the petitioner filed a criminal complaint under Sections 147, 148, 149, 323, 325, 307 and 506 IPC against nine accused, including respondents No.2 and 3, in relation to an incident dated 03.05.2011 wherein the learned trial Court summoned six accused and dismissed the complaint against the rest vide impugned order dated 06.06.2015. Aggrieved by non-summoning of accused No.7 to 9 including respondent No.2 and 3 herein, the petitioner filed a revision petition, which was dismissed vide impugned order dated 24.10.2016 passed by the learned Additional Sessions Judge, Gurgaon. Aggrieved against the said orders, the petitioner has approached this Court by way of instant petition.

3. Learned counsel for the petitioner contends that both the impugned orders are perverse and illegal and are a result of mis-appreciation of facts, hence, liable to be set aside. It is further contended that direct and active involvement of respondents No.2 and 3 in the commission of the crime is writ large, as is evident from the complaint filed by the petitioner before the learned trial Court, which stands corroborated by the statement made by the complainant as CW-4. It is also contended that respondents No.2 and 3, being police officials, acted in derogation of their official duty. Respondent No.3 had abused the wife of the petitioner whereas respondent No.2 slapped on her ear, causing injury to her, which has been duly corroborated by testimonies of PW-1 and PW-3.

4. It is further contended that the trial Court has erred in not appreciating the legal proposition that at the stage of summoning only a prima facie case for proceeding against the accused is to be seen. At such preliminary stage, evidence beyond all reasonable doubt is not necessary to be established and examination of all the cited witnesses is not necessary.

5. Per contra, learned counsel for respondent No.2 contends that a bare perusal of the complaint filed by the petitioner makes it clear that the said respondent had no role in the commission of the said crime. Injured-Suman wife of the petitioner has not been examined. Moreover, the statement of PW1 Dr. Someshwar Singh indicates that the injured-Suman was examined on 14.05.2011 whereas the occurrence had taken place on 03.05.2011. Further, statement of PW-3 Dr. Amit Kumar would indicate that she was examined on 20.05.2011. As such, unexplained delay in the medical examination of said Suman wife of petitioner makes it clear that respondents No.2 & 3 have rightly not been summoned by the learned trial Court.

6. Having heard learned counsel for the parties and after perusing the record, it transpires that the learned trial Court has dealt with the issue in right perspective. In the absence of examination of Suman and her medical examination after 10 days from the occurrence would create doubt on the version put forward by the petitioner. FIR No.237 dated 04.05.2011 registered under Sections 323 and 506 IPC regarding the same occurrence has been registered against the petitioner and his wife and the trial Court has concluded that the intention of the petitioner herein does not seem to be bona fide, rather seems to implicate respondents No.2 and 3 with an oblique motive to harass them.

7. While dealing with similar controversy, a two Judge Bench of the Hon’ble Supreme Court in Vishnu Kumar Shukla and another Vs. The State of Uttar Pradesh and