# Kamal Krishna v. State of U.P. and others

- **Citation:** (2005) 3 ILRA 895
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-29
- **Case number:** Criminal Misc. Application No. 11861 of 2005
- **Bench:** M.K. Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-krishna-v-state-of-u-p-and-others-40510
- **Pages:** 4

## Headnote

Code
of
Criminal
Procedure-482-
Summoning Order by Magistrate after
enquiry u/s200 and 202 Cr.P.C. after
being satisfied about sufficient evidence
to proceed against the accused personno required to evaluate the evidenceinterference by session judge on the
basis of contradictions in statement on
difference in measurement of injuryheld- un warranted.

Held: Para 8

In view of this legal position it is clear
that after the inquiry as contemplated
under Sections 200 and 202 Cr.P.C. if the
Magistrate is satisfied that there is
sufficient evidence to proceed against
the accused, he may issue summon or
warrant as the case may be and at that
stage the court is not required to
evaluate the evidence as if it was finally
deciding the case.
Case law discussed:
1973 (10) ACC 181 SC
1964 (1) SCR 639
1976 (13) ACC-225 (SC)
2002 (44) ACC-168
2004(1) SCC-338

## Text

3 All] Kamal Krishna V. State of U.P. and others
895
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2005

BEFORE
THE HON'BLE M.K. MITTAL, J.

Criminal Misc. Application No. 11861 of 2005

Kamal Krishna

...Applicant
Versus
State of U.P. and others ...Opposite Parties

Counsel for the Applicant:
Sri Mayank Agrawal

Counsel for the Opposite Parties:
AG.A.

Code
of
Criminal
Procedure-482-
Summoning Order by Magistrate after
enquiry u/s200 and 202 Cr.P.C. after
being satisfied about sufficient evidence
to proceed against the accused personno required to evaluate the evidenceinterference by session judge on the
basis of contradictions in statement on
difference in measurement of injuryheld- un warranted.

Held: Para 8

In view of this legal position it is clear
that after the inquiry as contemplated
under Sections 200 and 202 Cr.P.C. if the
Magistrate is satisfied that there is
sufficient evidence to proceed against
the accused, he may issue summon or
warrant as the case may be and at that
stage the court is not required to
evaluate the evidence as if it was finally
deciding the case.
Case law discussed:
1973 (10) ACC 181 SC
1964 (1) SCR 639
1976 (13) ACC-225 (SC)
2002 (44) ACC-168
2004(1) SCC-338

(Delivered by Hon'ble M. K. Mittal, J.)

1. The application has been filed by
the applicant under Section 482 Cr.P.C.
with the prayer to quash the order dated
8.7.2005 passed by Addl. Sessions Judge,
Court No.5, Saharanpur in Criminal
Revision No. 16 of 2005 and with a
further prayer to stay the operation of the
impugned order.

2. I have heard learned counsel for
the applicant, learned A.G.A and perused
the record.

Brief facts of the case are that Komal
Krishna, the applicant filed a complaint
against Tajendra, Ashwani and Surendra
Kumar under Sections 307, 504, 506 and
452 IPC alleging that he was married to
Seema Rani daughter of accused Surendra
Kumar. Ashwani is son of Surendra
Kumar and Tajendra is their friend. After
the marriage, the complainant came to
know that accused Tajendra had been
visiting his Sasural and had established
relations with Smt. Seema Rani. The
family members of Seema Rani also
wanted to marry her with Tajendra. But at
that time, Tajendra was not doing any
work and therefore she was married with
accused as he was having a good post in
the Railway department. The complainant
also came to know that even after the
marriage Tajendra used to visit his wife
during his absence. He objected but his
wife did not mend her ways and it became
bone of contention between them. When
the complainant complained about this act
of his wife to the accused, Ashwani and
Surendra Kumar, they reprimanded the
complainant.

3. After about one year of the
marriage, when the complainant came to
896 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
his house from his duty he found Tajendra
and his wife in objectionable position and
he turned Tajendra out of his house and
asked him never to come to his house. He
also stated hat he would lodge a report
against
Tejendra.
At
this
Tajendra
threatened to teach him a lesson. In the
circumstances, he was compelled to file a
divorce suit on 11.5.2004.

4. On 16.1.2005 at about 4 p.m.,
when he was at his room all the three
accused came there and abused him and
said that they had been searching him for
a long time and now he had been found.
The complainant said that he was taking
divorce and had no concern with them. At
this the accused Surendra said that he
would take divorce only when he
remained
alive.
Thereafter
Tajendra
attacked with Palkati, Surendra with lathi
and Ashwani fired at him with Tamancha.
However he bent down and avoided the
shot but received injuries from Palkati and
Danda. He was also medically examined
and thereafter he filed a complaint.

5. Learned Magistrate examined the
complainant under Section 200 Cr.P.C.
and also recorded the evidence of the
witnesses under Section 202 Cr.P.C. and
thereafter finding that a prima facie case
was made out against the accused
persons, directed to summon them vide
order dated 20.4.2005. Against the
summoning order accused persons filed a
criminal revision no. 16 of 2005 which
has been allowed by the impugned order
dated 8.7.2005. Learned Addl. Sessions
Judge remanded the case with the
direction that learned Magistrate shall
decide the matter again in light of the
observations made
by
him as the
complainant had not been able to
corroborate the incident in the evidence
given by him. Learned Sessions Judge as
mainly remanded the case on the ground
that there is contradiction in the statement
of the complainant as he gave the date of
incident as 16.5.2005 whereas in the
complaint the date was mentioned as
16.1.2005; that learned Magistrate did not
enquire from the complainant his house
number;
that
there
is
material
contradiction as in the statement of
Medical Officer the measurement of the
injury no. 1 has been given as 2.5 cm X
2.5 cm whereas in the injury report the
measurement has been mentioned as 2.5
cm X .5 cm; that the complainant has
stated in his statement that after the
incident Ashwani and Manish came and
on seeing them the accused ran away
whereas witnesses Manish and Ashwani
have stated that the accused caused
injuries in their presence with Palkati and
Danda and the fire was also made in their
presence.

6. Learned counsel for the applicant
has contended that learned Sessions Judge
has erred in setting aside the summoning
order on the inconsistencies as mentioned
above. According to him the first and
third inconsistency were clerical mistakes
and the contradiction as noted in the
statement of the witnesses could not be
seen at this stage as at the stage of Section
204 Cr.P.C., the evidence is not to be
meticulously
examined
and
the
correctness
and
the
nature
of
contradiction can be assessed at the time
of the trial only. He has further contended
that at this stage only a prima facie case
has to be seen and the statement of the
complainant as well as the witnesses as
supported by medical evidence show that
there was prima facie case against the
accused persons.
3 All] Kamal Krishna V. State of U.P. and others
897
7. It is settled legal position that at
the stage of Section 200, 202 and 204
Cr.P.C. a prima facie case has to be seen
and not whether the evidence as adduced
is to result in conviction of the accused
persons. In the case of Nirmaljit Singh
Hoon Vs. State of West Bengal and
another 1973(10) ACC 181 SC, while
considering the scheme of Section 200,
203 Cr.P.C., it has been held that the
Section does not say that a regular trial of
adjudging truth or otherwise of the person
complained against should take place at
that stage, for, such a person can be called
upon to answer the accusation made
against him only when a process has been
issued and he is on trial. Section 203
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 judgement no sufficient
ground for proceeding, he may dismiss
the complaint. In the case of Chandra
Deo Singh Vs. Prakash Chandra Bose
1964 (1) SCR 639, the Hon'ble Supreme
Court held that at the stage of enquiry
under Section 202 the test was whether
there
was
sufficient
ground
for
proceeding and not whether there was
sufficient ground for conviction. Again in
the case of Smt. Nagawwa Vs. Veeranna
Shivalingappa Konjalgi and others
1976
(13)
ACC
225
S.C.,
while
considering the scope of enquiry under
Section 202 Cr.P.C., Hon'ble Supreme
Court has held that it is extremely limited
only to the ascertainment of the truth or
falsehood of the allegations made in the
complaint (a) on 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
question purely from the point of view of
the complainant without at all adverting to
any defence that the accused may have. In
that case it has been held also 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 make 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 a recent case of S.W.
Palanitkar and others Vs. State of
Bihar and another 2002 (44) ACC 168,
the Hon'ble Supreme Court has held that
at the stage of Sections 200 and 203,
seraching sufficient ground to convict not
necessary.

8. In view of this legal position it is
clear
that
after
the
inquiry
as
contemplated under Sections 200 and 202
Cr.P.C. if the Magistrate is satisfied that
there is sufficient evidence to proceed
against the accused, he may issue
summon or warrant as the case may be
and at that stage the court is not required
to evaluate the evidence as if it was
finally deciding the case. In the instant
case, the contradictions as mentioned by
the learned Sessions Judge in the date of
incident is not material at all because the
statement
of
the
complainant
was
recorded on 14.2.2005 and therefore the
date of incident could not have been
16.5.2005, a day that was yet to come at
that time. It was clearly a clerical mistake
and could not be a ground to set aside the
summoning
order.
Similarly
the
difference in the measurement of the
injury is also a clerical mistake and if in
the injury report the dimensions were
given as 2.5 cm X .5 cm that should have
been read as such and the learned
898 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Sessions Judge has erred in finding a
contradiction on that basis also. Similarly
if the learned Magistrate did not ask the
house number of the complainant, the
prosecution case cannot be thrown out on
this ground. Again the contradiction as
referred
in
the
statement
of
the
complainant and the two witnesses is also
not material at this stage. Therefore there
was no ground to interfere in the
impugned order and learned Sessions
Judge has erred in remanding the case.

9. Learned counsel for the applicant
has also raised the point that in the case of
Adalat Prasad Vs. Roop Lal Zindal and
others 2004 (1) SCC 338, the Hon'ble
Supreme Court has held that if a person is
aggrieved by the summoning order, the
only remedy he has, is to file an
application under Section 482 Cr.P.C. and
therefore learned Sessions Judge had no
jurisdiction to hear the revision against
that order as such. This contention has
also force.

10. Thus, I come to the conclusion
that learned Sessions Judge has erred in
setting aside the summoning order as
passed
by
learned
Magistrate
in
remanding the case and the application is
to be allowed and the impugned order is
to be set aside.

11. Application under Section 482
Cr.P.C. is allowed. The impugned order
dated 8.7.2005 is set aside and the
summoning order dated 20.4.2005 passed
by learned Judicial Magistrate Court no.
24, Saharanpur is restored.
Application Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 1100 of 2005

Kiran Devi Smt. and another ...Appellants
Versus
M/s. Kesarwani Zarda Bhandar and
others

 ...Respondents

Counsel for the Appellants:
Sri Anand Kumar Sinha

Counsel for the Opposite Parties:
Sri U.C. Kesarwani
S.C.

U.P. Industrial Dispute Act-1947-Section
6-C-readwith
Industrial
Dispute
Act
1947-Section 19 (3)-Period of operation
of
in
an
Award-No
inconsistency
between the central Act and the U.P. Actwhether the lapse of the period of one
year kill the award? Held-'No' it remain
binding as contract between employer
and employee-period of one year-as
mentioned in Section 6-C-practically has
no importance.

Held: Para 19, 20

We need not consider here whether subsection (6) of Section 19 of the Central
Act is also applicable in Uttar Pradesh,
there being, as argued, no inconsistency
between it and the provisions of the U.P.
Act of 1947. We now merely observe
here that the lapse of one year does not
kill the award even though it might not
remain ' in operation' after that period.
The case of South Indian Bank Ltd.
Versus R. Chacko reported at A.I.R. 1964
Supreme Court 1522 and the case of
L.I.C. Versus D.J. Bahadur reported in
(1981) 1 S.C.C. 315 make it amply clear
that even after the operational period of