- (1.) K. N. Ojha, J. Heard learned counsel for the revisionist and the learned AGA. The revision is being disposed of at the admission stage.
(2.) INSTANT revision has been preferred against the order dated 1-11-2003 passed by the Chief Judicial Magistrate, Ghazipur, in Criminal Complaint No. 5003 of 2003, Kamal alias Moosan Rajbhar v. Dharmendra and three others, by which Dharmendra, Gyanendra Deval @ Gopal, Dharmdev alias Dharmu and Chhedi, have been summoned to face trial under Sections 452, 323, 504, 506 I. P. C. The impugned order was passed ofter recording statement of Kamla @ Moosan Rajbhar under Section 200 Cr. P. C. and of witnesses Brijesh P. W. 1, and Munna P. W. 2 under Sections 202 Cr. P. C. and also after perusing inquiry report, x-ray report and other papers. It has been submitted by the learned counsel for the revisionists that the Opposite Party No. 2 and his men had beaten the revisionists and two others on 11-8-2003, In respect of which FIR was lodged under Section 323, 504, 506 I. P. C. Investigation was conducted and charge-sheet was submitted against the Opposite Party No. 2 and others on 9-9-2003. The accused were summoned and in order to create pressure the complaint was filed under the above mentioned sections by Kamla @ Moosan Rajbhar against the revisionists on 23-11-2003 in this case occurrence is said to have taken place on 12-10-2003, thus the complaint was lodged after a long time and as such is an after thought plea. There is delay in filing complaint and the respondent No. 2 concealed the fact that FIR was lodged against him and charge sheet was submitted. Witnesses of the Opposite Party No. 2 in the complaint case are interested witnesses. If really any occurrence would have taken place he would have lodged FIR under Section 154 Cr. P. C. Without lodging FIR such complaint is not maintainable, which has been filed after 41 days of the alleged occurrence. This revision has been preferred against the order summoning the accused to face trial under Sections 452, 323, 504, 506 I. P. C. The order has been passed under Section 204 Cr. P. C. after perusing the statement of the complainant and his witnesses recorded under Sections 200 and 202 Cr. P. C.
(3.) IN 1976 SCC (Criminal) 507, Smt. Nagawwa v. V. S. Konjalgi and others, Hon'ble the Apex Court has held that in a proceeding under Section 202 Cr. P. C. the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It is not the power of the Magistrate to enter into the merit or demerit nor the High Court can go into this matter in its revisional jurisdiction, which a very limited one. Once the Magistrate has exercised its discretion, it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merit with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused, but such order passed by the Magistrate can be quashed if the complainant does not disclose the essential ingredients of an offence which is alleged against the accused or where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused or where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible or where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of complaint by legally competent authority. In the Full Bench decision of this Court reported in 2000 (2) JIC 399 (All) (FB) : 2000 (40) ACC 342, Ranjeet Singh v. State of U. P. , in which a large number of cases decided by Hon'ble the Apex Court and High Courts were dealt with in detail it has been held that the scope of inquiry under Section 202 Cr. P. C. is extremely limited. After considering a large number of rulings laid down by Hon'ble the Apex Court it was held by the Full Bench that in proceeding under Section 202 Cr. P. C. the accused has got absolutely no locus standi and infirmity if any in the case of evidence of the complainant can be placed at a proper stage as is contemplated in Cr. P. C. To set aside the summoning order after finding out the demerit in the case amounts to reversing the procedure for trial which is not permissible under the Cr. P. C. To challenge the process at summoning stage means to move the arms of the clock anti-clockwise which does not happen or at least should not happen and a parallel trial should not commence before the actual trial begins.;