# Rajbahadur Singh Revisionist v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-22
- **Case number:** Aligarh in Sessions Trial No.961 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajbahadur-singh-revisionist-v-state-of-u-p-ors-45395
- **Pages:** 3

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-
Section
397/401
-
Indian Penal Code, 1860-Sections 379,
504, 505-challenge to-misuse of process
of
law
u/s
204(4)
Cr.P.C.-accused
successfully
evaded
appearance-nonpresence of accused should have been
procured by way of invoking procedure
u/s 87 of the Cr.P.C.-instead of that,
learned Magistrate dismissed the matter
of the complainant at the stage of
issuance of bailable warrant- revision
against
summoning
order
was
also
dismissed,
despite
that
accused/Subinspector did not appear-at the stage of
seeking the presence of accused, the
presence of complainant was not at all
necessary-Once,
the
summons
was
already sent, there was no necessity of
paying further court fees.(Para 3 to 10)

In the present matter, there is a clear misuse of
process of law by the accused who even after
coming to know that summons were issued and
revision was dismissed, did not appear before
the court and strange enough the learned
Magistrate dismissed the complaint at the stage
of bailable warrant. There was no question of
affixing process fees, once the process fees has
been affixed, it is the duty of the police
authority to procure the presence of the
accused.
The
accused
was
shielded
by
Superintendent of Police even after noticed, no
action was taken by him.(Para 6 to 8) (E-6)

## Text

11 All. Rajbahadur Singh Vs. State of U.P. & Ors.
289

22. In the result, this revision is
allowed.
Impugned
order
passed
22.11.2019 passed by Additional Sessions
Judge/Fast Track Court, Court No.2,
Aligarh in Sessions Trial No.961 of 2012
arising out of Case Crime No.189 of 2012,
is quashed. Matter is remitted to the Court
below for taking appropriate action under
the provisions of law as embodied under
Section 7-A(2) of J.J. Act, 2000.

23. Certify this judgment to the lower
Court immediately for information and
necessary compliance.
----------
(2020)11ILR A289
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.09.2020

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

Criminal Revision Defective No. 411 of 2020

Rajbahadur Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Anil Kumar Mishra

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973-
Section
397/401
-
Indian Penal Code, 1860-Sections 379,
504, 505-challenge to-misuse of process
of
law
u/s
204(4)
Cr.P.C.-accused
successfully
evaded
appearance-nonpresence of accused should have been
procured by way of invoking procedure
u/s 87 of the Cr.P.C.-instead of that,
learned Magistrate dismissed the matter
of the complainant at the stage of
issuance of bailable warrant- revision
against
summoning
order
was
also
dismissed,
despite
that
accused/Subinspector did not appear-at the stage of
seeking the presence of accused, the
presence of complainant was not at all
necessary-Once,
the
summons
was
already sent, there was no necessity of
paying further court fees.(Para 3 to 10)

In the present matter, there is a clear misuse of
process of law by the accused who even after
coming to know that summons were issued and
revision was dismissed, did not appear before
the court and strange enough the learned
Magistrate dismissed the complaint at the stage
of bailable warrant. There was no question of
affixing process fees, once the process fees has
been affixed, it is the duty of the police
authority to procure the presence of the
accused.
The
accused
was
shielded
by
Superintendent of Police even after noticed, no
action was taken by him.(Para 6 to 8) (E-6)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Delay in filing the revision has
been condoned vide order of the date
passed on delay condonation application.

2. This revision has been preferred
against the order dated 13.8.2018 passed by
the Chief Judicial Magistrate, Moradabad
in Complaint Case No. 10657 of 2012.

3. The factual matrix in short is that
the complainant is a practising advocate
and he complained to the Chief Judicial
Magistrate, Moradabad about commission
of offences under Section 379, 504 and 505
of Indian Penal Code, 1860 (hereinafter
referred to as 'IPC'). His statement was
recorded as per Section 200 of Code of
Civil Procedure, 1973 (hereinafter referred
to as 'Cr.P.C.') and that of the witness under
Section 202 of Cr.P.C. The Court issued
summons to the accused. Against the
summoning order, instead of appearing
before the Court below one Jaibhagwan
290 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh, Sub Inspector preferred revision
being Revision No.305 of 2016 which was
rejected vide order dated 5.2.2018. Non
bailable warrant also was issued on
29.11.2016. Unfortunately, the learned
Judge predecessor to the one who passed
the order on 13.8.2018 had even sent
notices to the higher authorities to procure
the presence of the accused which went in
vain. The advocate fell sick namely the
complainant and the learned judge below
dismissed the complaint under Section 204
(4) of Cr.P.C. It is this order which is under
challenge.

4. I have heard learned A.G.A. for the
State. Private respondents are deemed to
have been served as even before the Court
below they have not appeared and they
seem to be head strong police officer as
even after dismissal of their revision
challenging the summoning order was
passed they have not appeared before the
learned Magistrate since 2012. Till 2016
the chronology of events would go to show
that the learned Magistrate on 12.7.2016
wrote to the police authority at Moradabad
by way of notice which had been annexed
that the summons were not served on the
accused though they were police officials.
It is after this notice that the accused
challenged the issuing summons order
being
Revision
No.305
of
2016
(Jaibhagwan Singh, Sub Inspector Vs State
of U.P. and others). The revision was
rejected by the Court of Session on
5.2.2018 and despite that, the accused did
not appear.

5. It is very strange that the learned
Judge whose order is under challenge did
not pass orders for procuring the presence
of the accused. The summons was already
issued which meant that Section 204 (4) of
Cr.P.C. was already complied with.

Section 204 of Cr.P.C. reads as
follows :

"204. Issue of process.

(1) If in the opinion of a
Magistrate taking cognizance of an offence
there is sufficient ground for proceeding,
and the case appears to be-

(a) a summons- case, he shall
issue his summons for the attendance of the
accused, or

(b) a warrant- case, he may issue
a warrant, or, if he thinks fit, a summons,
for causing the accused to be brought or to
appear

at a certain time before such
Magistrate or (if he has no jurisdiction
himself) some other Magistrate having
jurisdiction.

(2) No summons or warrant shall
be issued against the accused under sub-
section (1) until a list of the prosecution
witnesses has been filed.

(3) In a proceeding instituted
upon a complaint made in writing every
summons or warrant issued under sub-
section (1) shall be accom- panied by a
copy of such complaint.

(4) When by any law for the time
being in force any process- fees or other
fees are payable, no process shall be issued
until the fees are paid and, if such fees are
not paid within a reasonable time, the
Magistrate may dismiss the complaint.

(5) Nothing in this section shall
be deemed to affect the provisions of
section 87."

6. The order dated 13.8.2018 goes to
show that despite the fact that the accused
lost before the appellate authority was
successful in evading appearance and the
complainant sought to be lodged by an
advocate was dismissed. It is very strange
that instead of procuring presence of the
accused, the learned Magistrate dismissed
11 All. Km. Rehana & Anr. Vs. State of U.P. & Anr.
291
the complaint under Section 204 (4). Once
the summons was already sent, there was
no necessity of paying further court fees.
The non presence of the accused should
have been sought to be procured by way of
invoking procedure as per provisions of
Section 87 of the Cr.P.C. Instead of that,
the learned Judge has dismissed the
complaint of the present revisionist which
shows that the order is perverse. The said
order is required to be quashed and set
aside.

7. The respondents accused shall be
forthwith dealt with by the learned Magistrate
and their presence shall be procured even if it
has to be procured by way of non bailable
warrant to be served through Superintendent of
Police.

8. The order passed by the learned Judge
below dismissing the case is absolutely cryptic.
The stage was for appearance of the accused
who was evading summons and was aware that
summoning order was passed. The accused is
shield by Superintendent of Police, Moradabad
as after notice, no action is taken by him. The
revision filed by the accused was also dismissed
on 5.2.2018. All these factual aspect ought to
have been taken care of by the Magistrate. At
stage of seeking the presence of accused, the
presence of the complainant was not at all
necessary.

9. In view of the above, this revision is
allowed. The order impugned in this petition is
set aside. The learned Magistrate shall proceed
from the stage, summons was issued and
accused is aware of the summons the presence
of the accused be procured first and thereafter
the presence of the complainant be insisted
upon.

10. The learned Magistrate has the duty
cast to see that there is no misuse of the Court
proceedings. In this case, there is a clear misuse
of process of law by the accused who even after
coming to know that summons were issued
against them and their revision were dismissed,
did not appear before the Court below and
strange
enough
the
learned
Magistrate
dismissed that matter of the complainant at the
stage of issuance of bailable warrant as accused
had not appeared before it pursuant to the
summons already issued. There was no
question of affixing process fees and, therefore,
the dismissal under Section 204 of Cr.P.C. is
bad.

11. A copy of this order be sent to the
Superintendent of Police, Moradabad who shall
explain to this Court as to what action he had
taken pursuant to the notice dated 12.7.2016.

12. This judgment be circulated to the
Trial Court Judge not to insist for the presence
of complainant at the stage of service of
summons/warrants and/as their presence would
not be required for any adjudicatory purpose.

13. Once the process fees has been
affixed, it is the duty of the police authority
through the Court to procure the presence of the
accused unless orders otherwise are passed. The
compliance be filed in the Registry of the High
Court
on
or
before
25.10.2020
by
Superintendent of Police, Moradabad and the
learned Magistrate concerned.
----------
(2020)11ILR A291
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.09.2020

BEFORE
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Revision No. 596 of 2020

Km. Rehana & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties