JUDGMENT :

1. Heard Raghuvansh Misra, learned counsel for the petitioner, Sri Alok Singh, learned counsel for private respondent nos. 2 to 6 and Sri S.C. Mishra, learned AGA for the State.

2. This petition under Article 227 of the Constitution has been filed by the petitioner claiming following relief:-

“(i) issue an appropriate order or direction to set aside the order dated 17.10.2022 of Sri Vivek Sangal, Sessions Judge, Agra in Criminal Revision no. 93 of 2020 (Dilip and others versus State of U.P. and another).”

3. Relevant facts are as below:-

Smt. Gudiya moved an application under section 156(3) Cr.P.C., on the basis whereof case no. 51 of 2019 under sections 147, 148, 149, 323, 325, 452, 504, 506 and 302 IPC was registered. The allegations in nutshell are that the father and brother in-law of the informant were assaulted with ‘lathi-danda’. They managed to escape. 10 minutes later, the accused persons namely, Than Singh, Dilip, Pawan armed with firearms and other accused persons namely, Sunil, Anil, Lalit and Sachin carrying lathi, danda, farsa came to the informant’s house and assaulted her mother in-law Patri Devi. Accused Dilip and Pawan fired at Mahendra and Sachin, which accidentally hit not them, but Anil and Lalit i.e., two of the assailants themselves. Patri Devi died on the spot. Suresh and Hakim Singh suffered fractures.

The story in the application under section 156(3) Cr.P.C. also mentioned the fact that she tried to lodge an FIR but the same was not registered by the police. Instead an FIR case crime no. 665 of 2018 was registered against husband of the informant and several others.

After investigation, a final report was submitted by the police.

The first informant filed a protest petition. The CJM, Agra rejected the final report and treated the protest petition as complaint by order dated 09.09.2019.

The court proceeded and examined her and her witnesses. The complainant-Gudiya was examined under section 200 Cr.P.C. Her witness-Vijay as CW1, Laxmi Devi as CW2, Phoolwati as CW3, Dr. C.P. Rawat as CW4, Dr. Sumit Kumar Singh as CW5 and Hakim Singh as CW6 were examined under section 202 Cr.P.C.

The CJM, by order dated 12.03.2020, summoned accused Than Singh under sections 147, 148, 149, 323, 452, 304, 504 IPC; Dilip and Anil under sections 147, 148, 149, 323, 452, 504 IPC; Sunil and Sachin under sections 147, 148, 149, 323, 452, 307, 504 IPC.

The aforesaid accused persons preferred a criminal revision no. 93 of 2020 against summoning order. The revisional court by order dated 17.10.2022 directed the Magistrate concerned to pass a fresh order in the light of the observations of the revisional court and set aside the summoning order.

Now the complainant is before this court challenging the order of the revisional court.

4. The submissions of the petitioner are that the revisional court went beyond its jurisdiction. It re-appreciated the evidence on record, which cannot be done by the revisional court. Further, it is argued that the direction of the revisional court to direct the complainant to produce some more witnesses, is wrong as formal witnesses cannot be said to be the witness of the complainant. Contention of the petitioner is based on proviso to sub-section (2) to section 202 Cr.P.C., which is as below:-

“In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness 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.”

5. On the basis of above provision, it is argued that the formal witnesses like the doctor and the head moharrir, cannot be categorised as his witnesses, therefore he was not obliged to produce them.

The petitioner refers to the judgment of the Allahabad High Court given in Kallu Pal and Others vs. State of U.P. and Another; 2008 (3) ADJ 254. The High Court observed in para nos. 3 and 4 as below:-

“3