HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 Case :- U/S 482/378/407 No. - 5027 of 2010 Applicant :- Smt. [ENTITY] And Others Opposite Party :- The [ENTITY] And Others Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- Govt. Advocate Hon'ble [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 order dated 05.09.2009 passed by the Judicial Magistrate (Custom) Lucknow in [CASE NUMBER] under [SECTION], [SECTION], [SECTION], [SECTION] [ACT], P.S. Krishna Nagar, District Lucknow.
Learned counsel for the petitioners has submitted that the petitioners have not committed any offence and they have falsely been implicated in this case. He has also submitted that the complaint has been preferred on the basis of false and fabricated facts, in order to nullify the criminal case as well as the proceedings under [SECTION] [ACT] moved by the petitioner no.1, which is nothing but only a counterblast by the opposite party no.3. It has also been submitted that the present proceedings is an outcome of malice intention.
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 questin 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.
The petition is dismissed.
Order Date :- 9.7.2019 VNP/-