Shabbeer Ali @ Shabbi Ali v. State Of U.P. And 5 Others

Neutral Citation No. - 2023:AHC:99115

Court No. - 93 Case :- CRIMINAL REVISION No. - 1812 of 2023

Revisionist :- Shabbeer Ali @ Shabbi Ali

Opposite Party :- State Of U.P. And 5 Others

Counsel for Revisionist :- Raja Ram Kushwaha

Counsel for Opposite Party :- G.A.

Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Sandeep Mishra, Advocate holding brief for Sri Raja Ram Kushwaha, learned counsel for the revisionist and learned A.G.A. for the State.

2. This criminal revision has been filed by the revisionist challenging an order dated 16.02.2023 passed by the Special Judge (Anti Dacoity Court)/Additional District and Session Judge, Hamirpur in Special Session Case No.424 of 2022 (Shabbeer Ali @ Shabbi Ali vs. Mehandi Hasan and Others), whereby the complaint case filed by the revisionist has been dismissed under section- 203 Cr.P.C.

3. The relevant facts are as below:-

The revisionist/complainant filed a complaint against his father-in-law, mother-in-law, wife, brother-in-law and one close relative- Shanu with the allegations that he got married to Rawasiya Khatoon in October, 2014; the revisionist/complainant filed a case before the Family Court, Hamirpur against his wife Rawasiya, which caused resentment and annoyance to his in-laws and his wife; motivated by anger against him, all of the opposite parties (who are respondent nos.2 to 6 in this criminal revision) came to his house in a taxi on 10.05.2022 at 10:00 pm; the complainant opened the door and he found them standing there; he began arrangement for their dinner but his father-in-law announced that they had not come to take dinner and rather they had come to take back the jewellery belonging to her daughter; the complainant pleaded that all the jewellery had been returned to them; they enraged over it, started abusing them and snatched away the keys from his mother's neck, forcibly removed the jewellery and Rs.4,000/- cash kept in the box; when they raised an alarm, the complainant and his family members were intimidated by knife shown by Mehndi Hasan and his son Munna; the incident was witnessed by Mushtak and Pappu; they unsuccessfully tried to lodge a report; a compliant case with the above story was filed by the revisionist-husband.

4. The evidence under sections- 200 and 202 Cr.P.C. was led and the learned trial court dismissed the complaint under the provisions of section-

203 Cr.P.C. Now, the complainant is before this Court in this revision.

5. The contention of the revisionist is that the impugned order has been passed against the weight of evidence on the basis of certain presumptions drawn by the trial court. It is contended that the order suffers from perversity and illegality and is therefore not sustainable.

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6. I went through the impugned order and the statements given by the complainant- Shabbir Ali under section- 200 Cr.P.C. and by E.W.2- Mohammad Ali and E.W.3- Sanjeeda under section- 202 Cr.P.C.; the learned trial court considered the statements given under sections- 200 and

202 Cr.P.C.; it noticed the fact that no witness except mother and father of the complainant have been examined under sections- 202 Cr.P.C.; it further noted that admittedly a case under section- 125 Cr.P.C. filed by the wife of the complainant is pending; on the basis of facts and circumstances of the case, the court returned an opinion that the story is concocted and false; it also noticed the fact that no independent witness of the incident was produced on behalf of the complainant.

7. There cannot be two opinions on the settled legal position that the Magistrate has to satisfy itself whether prima facie any case is made out or not, before proceeding to summon the accused persons. The meaning of prima facie case must be understood in the right perspective. There may be cases where the Magistrate finds that in literal sense of the words occurring in the statements the ingredients of an offence are there but he feels not so satisfied with them. The Hon'ble Supreme Court in para-11 of the judgment passed in Fiona Shrikhande vs. State of Maharashtra and Another; (2013) 14 SCC 44, observed as below:-

"At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to "prima facie satisfy" whether there are "sufficient grounds to proceed" against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or

falsehood of the allegations made in the complaint."

8. The Supreme Court has used the pharse arriving at "prima facie satisfaction" whether there are "sufficient grounds to proceed"! Section

204 Cr.P.C. nowhere said that the Magistrate shall take cognizance and summon the accused if prima facie case is made out, instead Section 204 Cr.P.C. says that the Magistrate may take cognizance if there is sufficient ground for proceeding, hence in my view the prima facie case must be construed to mean "prima facie satisfaction" arrived at by the Magistrate. In other words the Magistrate shall proceed only if he finds that there is sufficient ground for the same. This is not to say that the proposed accused shall have any right to be heard at that stage or that any evidence in defence can be considered. It merely means that the Magistrate shall assess all the material before it and apply its mind to find out whether time has come to proceed and take cognizance. In that view of the matter the Supreme Court in the case as aforesaid has instead of using the word "prima facie case" has found fit to use the phrase "prima facie satisfaction" and of course this satisfaction has to be arrived at while acting within the four corners of law i.e., by adopting the procedure as provided under Sections 200 and 202 Cr.P.C. In my view, the Magistrate is not powerless to examine the truth or falsehood of the case made in the complaint. The broad probabilities or improbabilities of the story of course may be seen at this stage.

9. The relative scope of Sections 203 and 204 Cr.P.C. were noted and considered by the Supreme Court in Pepsi Food Limited and another vs. Special Judicial Magistrate and others; (1998) 5 SCC 749, is as below:-

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"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

10. The observations of the trial court that there is a matrimonial dispute between the complainant and his wife and that he has been living separate from her and that probably the story is false and concocted, are neither perverse nor unwarranted. I do not find any good ground to interfere in the order. Hence, this criminal revision is dismissed.

11. Copy of this order be transmitted to the court concerned immediately.

Order Date :- 9.5.2023 Saif

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