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2010 Supreme(All) 588
[2010(3) ADJ 512]
ALLAHABAD HIGH COURT
BEFORE : D.R. AZAD, J.
Smt. PRABHA KUSHWAHA ....Revisionist
Versus
STATE OF U.P. AND ANOTHER ....Opposite Parties
(Criminal Revision No. 1403 of 2008, decided on 15th February, 2010)
Counsel :
Ali Hasan, Om Prakash Maurya for the Revisionist; A.G.A. for the Respondents.
Headnote:Criminal Procedure Code, 1973—Sections 156(3), 200, 202, 203 and 204—(Indian) Penal Code, 1860—Sections 387, 392, 452 and 506—Protest petition—Rejection of—Final report—Acceptance of—Magistrate treating protest petition as complaint case—As a result revisionist examined herself under Section 200 of Code and her witnesses—Dismissal of complaint—Legality of—While dismissing complaint, Magistrate has to see prima facie sufficient ground for proceeding in matter—If it is not there, only then he could dismiss complaint—In present case Magistrate has not properly appreciating evidence adduced by complainant—Erred in dismissing complaint—After enquiry as contemplated under Sections 200 and 202 of Code—If Magistrate is satisfied that there is sufficient evidence to proceed against accused—He may issue summon or warrant as case may be—At that stage, Court is not required to evaluate evidence—As if it was finally deciding the case—In present case Magistrate dismissed complaint only on ground of presumption that matter relates to election and no injury report is available on record—Matter remanded. [Paras 8, 12 and 13]
Hon’ble D.R. Azad, J.—Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record.
2. 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 case No. 32 of 2008 Smt. Prabha Kushwaha v. Bhagwat Narain and others, 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.
3. The brief facts of the case is that an application under Section 156 (3), Cr.P.C. 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 5.00 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-pardhan Bhagwat Narain Upadhyay along with 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 Opp. 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 under Section 156 (3), Cr.P.C. 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 under Section 200, Cr.P.C. and witnesses Uddu Barar and Kali Charan have been examined on 7.4.2008 under Section 202, Cr.P.C. The learned Magistrate on 30.4.2008 passed an order on the complaint of the revisionist, dismissed the complaint and accepted the final report.
4. Being aggrieved against the order dated 30.4.2008, the present criminal revision has been preferred before this Hon’ble Court by the revisionist.
5. Learned counsel for the revisionist contended that from the evidence of the record, prima faice cognizable offence under Sections 387, 392, 452 and 506, I.P.C. is fully made out against the accused-Opp. Party No. 2, therefore, the accused is liable to be summoned for facing trial.
6. 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 cognisance against the accused.
7. Per contra, learned A.G.A. has supported the judgment and order dated 30.4.2008.
8. 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.
9. The instances where Magistrate can dismiss complaint under Section
