Virendra Singh - (1.) THIS revision has been preferred by the revisionists/accused persons against the impugned order dated 25.10.2005 passed by Special Judge (D.A.A.) Budaun in S.S.T. No. 90 of 2005, Suraj Pal v. Sirpal and others, under Sections 395 and 397, I.P.C. P.S. Rajpura, district Budaun, whereby the accused persons, the revisionists of this case have been summoned for the offence under Sections 395 and 397, I.P.C. thereby finding the prima facie case against the accused persons.
(2.) I have heard learned counsel for the revisionists and learned A.G.A. on behalf of State, while no one appeared on behalf of respondent No. 2, despite service sufficient for the revision on the respondent. It is contended on behalf of the revisionists that the impugned order is erroneous on the facts of the case, as well as in the eyes of law because the complainant's allegation against accused persons are highly improbable and obscured. All the accused persons are family members and it is highly improbable that they would commit dacoity in their own village. The learned lower court was pleased to sought the police report as per provisions under Section 202 (1), Cr. P.C. from the police and the police of police station concerned had reported after recording the statements of witnesses and preparing the site plan that no occurrence of alleged dacoity was happened. The learned lower court committed error thereby not considering and relying the police report in the circumstances of the entire scenario of the case brought by the complainant before the learned lower court. The true facts are that the accused persons had resisted the complainant to cut down 13 trees of babool which were jointly owned by the revisionists, as well as the opposite party No. 2 and just to build up the pressure on the revisionists, the false and baseless complaint against the revisionists has been filed by the opposite party No. 2. The learned A.G.A. contended that there is no error in the impugned order either on the facts of the case or in the eyes of law and since the learned lower court is very much competent to take cognizance against the accused persons on a complaint reported to the Court constituting the prima facie offence against accused persons, the learned lower court committed no error thereby summoning the accused persons under Sections 396 and 397, I.P.C.
(3.) THE law relating to dismissal of complaint under Section 203, Cr. P.C. or issue of process against accused persons as per provisions under Section 204 of Cr. P.C. is very much clear as is held in various decisions of Hon'ble Apex Court, as well as of various High Courts. THE Magistrate shall dismiss the complaint, if he finds that no offence has been committed or if he distrusts the statement of the complainant and his witness examined and he shall also dismiss the complaint, if on a consideration of a result of inquiry or investigation, if any under Section 202, he thinks that there is no ground for proceeding. If bare perusal of a complaint or the evidence shows that essential ingredients of the offence alleged are absent or that the dispute is only of a civil nature or based on such patent absurdities in evidence that it would be waste of time to proceed further, the complaint could be dismissed. THE words "sufficient ground for proceeding" found in Section 203, Cr. P.C. show that all the Magistrates are expected to see, whether there are sufficient grounds for proceeding against the accused for an offence and at that stage, he cannot go into the truth or otherwise of the allegations made in the complaint. THE standard of proof required at the stage of inquiry is not the same, which is expected from the complainant during trial. THE only thing is to be considered is whether there is a prima facie evidence of a criminal offence. Sufficient ground do not mean sufficient ground for conviction, but such evidence as would be sufficient to put the accused upon trial. If the Magistrate thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. THE wide discretion has been given, as to grant or refusal of process, to the Magistrate and it must be judicially exercised. A person ought not be dragged into Court merely because the complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely thinking that it is unlikely to result in a conviction. THE reasonable view is that if all things considered and a prima facie case is made out, the person charged ought to be put on his trial, so that it may appear to the complainant that justice is being done. At this stage the result of the trial is no concern of the Court. Contradictory statements of witness/witnesses has to be tested for it's truthfulness for acceptance or negation. Of-course, if the allegations made in the complaint do not disclose any offence, the Magistrate cannot summon the accused persons but when the allegations contained in the complaint disclose the offence and the same allegations have been substantiated by the evidence of the witness examined under Sections 200 and 202, Cr. P.C. and the Magistrate is satisfied with that trial should proceed against the accused persons, the order of the Magistrate for summoning the accused persons in such circumstances is very much perfect. Judicial process should not be an instrument of oppression or needless harassment. THE Court should be circumspect and judicious in exercising discretions and should take all relevant facts and circumstances into consideration while issuing process, lest it would be an instrument in the hand of private complainant as vendetta to harass the persons needlessly. In the light of the contentions of both the parties and the law as is aforesaid. I have gone through the entire facts and circumstances on record and I am of this view that impugned order is not a perfect order in the eyes of law. The learned lower court recorded the statement of the complainant as per provisions under Section 200, Cr. P.C. and the witnesses named Rishipal, Virendra and Nawab Singh have been examined by the learned lower court as per provisions under Section 202, Cr. P.C. As per order dated 3.2.2005, the learned lower court had also sought the matter to be inquired by the police as per provisions under Section 202 (1), Cr. P.C. as in the view of the learned lower court the matter is of serious nature against the accused persons. The report of the police concerned was also received and the police had reported that there was no occurrence alleged in the complaint occurred in between the parties and there had been merely a dispute of cutting of 13 trees of babool in between the parties. The learned lower court did not consider the aforesaid report of the police at the time of summoning the accused persons as is no mention of it in the impugned order. No doubt as per provisions under Section 202 (1) (a) of Cr. P.C., it is clear that where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, no direction for an investigation to be made by the police officer or by such other person as the Magistrate finds fit for the purpose of testing whether or not there is sufficient ground for proceeding, could be issued. Perhaps keeping in view this much provision, the learned lower court has not considered the police report in this regard, sought by his predecessor on record. Therefore, this much argument though has no force as is raised on behalf of revisionists that the learned lower court committed error thereby not considering the report before summoning the accused persons but in my view, still the impugned order is liable to be quashed being in it not properly considered the circumstances by the learned lower court that the offence of dacoity by the family members of one family in the village in the house of the another person related to them is not very much probable to be committed. The learned lower court himself mentioned in the impugned order that the complainant of this case had filed some other complaints also against some of the accused persons/ revisionists of this case. In such circumstances it seems a case filed by the complainant against his opponents merely to harass them. Judicial process should not be an instrument of oppression or needless harassment. The learned lower court should have circumspect in exercising judicial discretion and should take such relevant facts and circumstances into consideration before issuing process in this case. The learned lower court has not taken into account the circumstances as to, lest it would be an instrument in the hands of the complainant as vendetta to harass revisionists / accused persons needlessly. Hence, looking into the entire facts and circumstances. This is a fit case in which this revision should be allowed and the impugned order dated 25.10.2005 is to be set aside. Therefore, this revision is allowed hereby setting aside the impugned order and the complaint filed by the complainant shall stand dismissed.;