HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- U/S [SECTION] Applicant :- [ENTITY] & Ors. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- G.A. Hon'ble Mrs. [ENTITY],J.
Heard learned counsel for the petitioners, learned AGA and perused the record.
This petition has been filed with the prayer to quash the impugned non bailable warrant dated 12.6.2019 passed by Additional Chief Judicial Magistrate-II, Gonda in [CASE NUMBER], Smt. Manju Vs. [ENTITY] and others, under sections [SECTION] [SECTION] [ACT], Police Station Wazirganj, District Gonda.
Learned counsel for the petitioners has submitted that there is no independent witness of the incident and the petitioners have not committed any offence and he has falsely been implicated in this case. Lastly, learned counsel for the petitioners has submitted that petitioners are ready to surrender before the court below and some protection may be granted to them.
Learned A.G.A., on the other hand, argued that the order, summoning the accused-applicants, has been passed by the Magistrate concerned on the basis of the evidence recorded under [SECTION] and [SECTION] [ACT] and there is nothing illegal in it.
In the case of [PRECEDENT] while considering the scheme of [SECTION], [SECTION] [ACT], it has been held by the Hon'ble Apex Court that [SECTION] [ACT] does not say that a regular trial for adjudging the truth or otherwise of the accusation made against the accused should take place at that stage. [SECTION] consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint.
In the case of [PRECEDENT], the Hon'ble Apex Court held that at the stage of enquiry under [SECTION] [ACT], the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of [PRECEDENT] while considering the scope of enquiry under [SECTION] [ACT], the Hon'ble Apex Court has held that it is extremely limited only to the ascertainment of truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value made out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.
In the case of [PRECEDENT], the Hon'ble Apex Court has held that at the stage of passing order under [SECTION] [ACT] searching sufficient ground to convict is not necessary.
In the present case, the Magistrate concerned, after considering the evidence recorded under [SECTION] and [SECTION] [ACT] has concluded that prima facie a case is made out against the applicants and as such the applicants have been summoned as accused. A perusal of the aforesaid statements reveals that the applicants have, prima facie, committed offence and in these circumstances it cannot be held that the Magistrate has committed any illegality or impropriety in passing the impugned order.
In view of the above, there is no reason to interfere with the progress of the proceedings. Moreover, the applicants have right to be discharged under Sections [SECTION] as the case may be by making a proper application for the said purpose containing therein their submissions with regard to their discharge.
However, in this matter, after enquiry, the Magistrate has found a prima-facie case against the accused persons. At this stage there is no occasion to look into the question, whether the charge ultimately can be substantiated or not since that would be a subject matter of trial. No substantial ground has been made out which may justify interference by this Court under [SECTION] [ACT] From perusal of the record, it cannot be said that the cognizable offence is not made out against the petitioners.
However, learned lower court is directed that if the petitioners [ENTITY], [ENTITY], [ENTITY], [ENTITY] and Smt. [ENTITY] surrender before the court below within four weeks from today and move application for bail, the same shall be considered and disposed of in the light of the judgment, passed by the 7 Judges' Bench of this Court in [PRECEDENT], as approved by the Apex Court in [PRECEDENT] in [CASE NUMBER] dated 23.3.2009, expeditiously.
Till then, no coercive action shall be taken against the petitioners.
It is made clear that in no case the aforesaid period shall be extended and no excuse shall be entertained.
After expiry of the aforesaid period, if the petitioners have not surrendered, then the authorities concerned shall have full liberty to take action against them in accordance with law.
With the above observations, the petition is disposed of.
Order Date :- 18.7.2019 GSY