Rajeev Misra, J. - (1.) Heard Mr. Ram Pratap Yadav, learned counsel for the revisionist and the learned A.G.A. for the State.
(2.) This criminal revision has been filed against the order dated 31.3.2018 passed by the Judicial Magistrate-II, Varanasi, in Complaint Case No. 2178 of 2018 (Pradeep Kumar Vs. Namwar), under sections 494 and 495 IPC, P.S. Manduadih, District Varanasi, whereby the application under section 245 (2) Cr. P. C. filed by the revisionist has been rejected.
(3.) From the record, it appears that the marriage of the revisionist was solemnized with Prerna Siddharth, the daughter of opposite party No. 2 on 30.5.2012. Subsequently, the opposite party No. 2 filed an application dated 7.2.2013 in the Court of Chief Judicial Magistrate, Varanasi, in terms of section 156 (3) Cr. P. C. The said application was allowed by the Chief Judicial Magistrate, Varanasi, vide order dated 14.2.2013 and directions were issued to the Station House Officer, Varanasi of Police Station Manduadih to register an F.I.R. Consequently, an F.I.R. bearing Case Crime No. 42 of 2013 under sections 494 and 495 IPC came to be registered. Upon completion of the investigation of the aforesaid F.I.R., Investigating Officer submitted a final report No. 39 of 2014 dated 16.2.2013. On this final report dated 16.2.2013, the opposite party No. 2 filed a protest petition. On this protest petition, the Judicial Magistrate-II, Varanasi passed an order dated 2.11.2013, whereby the final report dated 16.2.2013 was rejected and the protest petition dated 24.9.2013 was directed to be proceeded with as a complaint. Subsequently, the statements of the complainant and his witnesses as provided under sections 200 and 202 Cr. P. C. were recorded. On being, prima facie, satisfied the Trial Court summoned the revisionist, vide order dated 21.3.2004. Feeling aggrieved by the summoning order dated 21.3.2004, the revisionist filed Criminal Misc. Application No. 17771 of 2014 (Sanjay Kumar Pushkar Vs. State of U.P. and others), which came to be disposed of finally, vide order dated 19.5.2014. The order dated 19.5.2014 is reproduced herein below:- "List of fresh cases has been revised. Heard learned counsel for the applicant and learned A.G.A. for the State. This application under Section 482, Cr.P.C. has been filed for quashing the entire proceedings of Criminal complaint Case No. 2178 of 2013 under Sections 494, 495 IPC, police station Maduwadih district Varanasi, pending in the court of Judicial Magistrate-II Varanasi and also to quash the summoning order dated 21.3.2014 passed in the aforesaid case. The contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, 1960 AIR(SC) 866, State of Haryana Vs. Bhajan Lal, 1992 SCC(Cri) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC(Cri) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, 2005 SCC(Cri) 283 (Para-10) . The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 or 245 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court. The prayer for quashing the proceedings and summoning order dated 21.3.2014 is refused. However, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P.,2004 57 AllLR 290, as well as judgment passed by Hon'ble Apex Court reported in (SC) Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 3 ADJ 322, For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid directions, this application is finally disposed of.";