# Sanjay Sharma & Ors v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-sharma-ors-v-state-of-u-p-ors-46907
- **Pages:** 7

## Headnote

A. Constitution of India, 1950-Article 227
&
Indian
Penal
Code,1860-Sections
376,120-B, 354,323,504,506-quashing of
summoning order and revisional orderaccused committed rape-also she was
harassed for dowry by other accusedstatement of Doctor and statement of PW1 and PW-2 supported the averments of
the complaint of commission of rapepetitioners contended their dispute as
family dispute/civil dispute-at the stage of
summoning it cannot be adjudicated nor it
cannot be determined in the exercise of
jurisdiction under Article 227-it is well
settled law that while exercising inherent
496 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction u/s 482 Cr.P.C. or revisional
jurisdiction u/s 397 of the Code in a case
where complaint is sought to be quashed, it
is not proper for the High Court to consider
the defence of the accused or embark upon
an enquiry in respect of the accusations-the
same principle shall apply when challenge is
made to the summoning order even in
petition under Article 227 of the Constitution
of India-the order passed by the Magistrate is
in conformity with the settled law-Magistrate
was satisfied that a case for summoning
order is made out, prima facie- in exercise of
revisional jurisdiction on the basis of material
placed before him u/s 200 and 202 Cr.P.C.,
the court will not consider new material nor
it could consider whether material laid before
the revisional court was credible or not-Order
passed by revisional court is also perfectly in
accordance with law.(Para 1 to 26)

The Petition is dismissed. (E-5)

List of Cases cited: -

## Text

3 All. Sanjay Sharma & Ors. Vs. State of U.P. & Ors.
495
(2014) 9 SCC 78 according to which no
interference is warranted in such findings
of fact. It is also settled law that jurisdiction
under Article 227 of the Constitution of
India is akin to revisional jurisdiction and
the scope of interference in the findings of
fact is also very limited.

18. In such view of the matter, I do
not
find
any
jurisdictional
error
or
perversity in the findings recorded and the
conclusion drawn by the courts below.
Present petition is devoid of merits and is
accordingly dismissed.

19. Having considered the facts and
circumstances of the case, subject to filing
of an undertaking by the petitioner-tenant
before the Court below, it is provided that:

(1)
The
tenant-petitioner
shall
handover the peaceful possession of the
premises in question to the landlordopposite party on or before 31.8.2021;

(2) The tenant-petitioner shall file the
undertaking before the Court below to the
said effect within one month from today;

(3) The tenant-petitioner shall pay
entire decretal amount within a period of
two months from the date of receipt of
copy of this order.

(4) The tenant-petitioner shall pay
damages as held by the court below per
month by 07th day of every succeeding
month and continue to deposit the same in
the Court below till 31.8.2021 or till the
date he vacates the premises, whichever is
earlier and the landlord is at liberty to
withdraw the said amount;

(5) In the undertaking the tenantpetitioner shall also state that he will not
create any interest in favour of the third
party in the premises in dispute;

(6) Subject to filing of the said
undertaking, the tenant-petitioner shall not
be evicted from the premises in question till
the aforesaid period;

(7) It is made clear that in case of
default of any of the conditions mentioned
herein-above, the protection granted by this
Court shall stand vacated automatically.

(8) In case the premises is not vacated
as per the undertaking given by the
petitioner, he shall also be liable for
contempt.

20. There shall be no order as to costs.
----------
(2021)03ILR A495
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Matter Under Article 227 No. 3175 of 2020(Crl.)

Sanjay Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Kalim, Sri Abrar Ahmad Siddiqui, Sri
Narendra Kumar Pandey

Counsel for the Respondents:
G.A., Sri Prashant Sharma

A. Constitution of India, 1950-Article 227
&
Indian
Penal
Code,1860-Sections
376,120-B, 354,323,504,506-quashing of
summoning order and revisional orderaccused committed rape-also she was
harassed for dowry by other accusedstatement of Doctor and statement of PW1 and PW-2 supported the averments of
the complaint of commission of rapepetitioners contended their dispute as
family dispute/civil dispute-at the stage of
summoning it cannot be adjudicated nor it
cannot be determined in the exercise of
jurisdiction under Article 227-it is well
settled law that while exercising inherent
496 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction u/s 482 Cr.P.C. or revisional
jurisdiction u/s 397 of the Code in a case
where complaint is sought to be quashed, it
is not proper for the High Court to consider
the defence of the accused or embark upon
an enquiry in respect of the accusations-the
same principle shall apply when challenge is
made to the summoning order even in
petition under Article 227 of the Constitution
of India-the order passed by the Magistrate is
in conformity with the settled law-Magistrate
was satisfied that a case for summoning
order is made out, prima facie- in exercise of
revisional jurisdiction on the basis of material
placed before him u/s 200 and 202 Cr.P.C.,
the court will not consider new material nor
it could consider whether material laid before
the revisional court was credible or not-Order
passed by revisional court is also perfectly in
accordance with law.(Para 1 to 26)

The Petition is dismissed. (E-5)

List of Cases cited: -

1. Bhushan Kumar Vs St. of NCT of Delhi,
(2012) AIR SC 1747

2. R.R. Kapur Vs St. of Punj., (1960) AIR SC 866

3. St. of Har.Vs Bhajan Lal, (1992) AIR SCC 604

4. Sonu Gupta Vs Deepak Gupta & ors., (2015)
3 SCC 424

5. Harshendra Kumar Vs Rebatilata Koley & ors.,
(2011) 3 SCC 351

6. Prasoon Kumar Srivastava Vs St. of U.P.,
(1999) Cri.L.J. 3375

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Shri N.K. Pandey, learned
counsel for the petitioners; Shri Prashant
Sharma, learned counsel for opposite party no.
2 and the learned A.G.A. for the State.

2. The petitioners/applicants have
challenged the order dated 13.10.2020 passed
by Additional Sessions Judge, Room No. 4,
Saharanpur in Criminal Revision No. 128 of
2020 (Sanjay Sharma and other versus State of
U.P. and another) and the summoning order
dated 23.06.2020 passed by the Chief Judicial
Magistrate, Saharanpur in Complaint Case No.
1657 of 2020 against applicant no. 1 under
Sections 376, 354, 323, 504, 506 I.P.C. and
against
other
applicants
under
Sections
376/120B, 323, 504 and 506 I.P.C. at Police
Station-Sadar Bazar, District-Saharanpur.

3. Briefly stated facts of the case are that
the opposite party no. 2 filed a complaint under
Sections 376, 120B, 354, 323, 504, 506 I.P.C.,
Police Station Sadar Bazar, District Saharanpur
against the applicants alleging that the applicant
no. 1 committed rape and all the accused
persons harassed her for dowry. The Magistrate
recorded the statement of opposite party no. 2
under Section 200 Cr.P.C. and the statements of
the witnesses P.W. 1, P.W. 2 and P.W. 3 under
Section 202 Cr.P.C. Thereafter, the Magistrate
summoned the applicants by order dated
23.06.2020. The applicants filed Criminal
Revision No. 128 of 2020 which was rejected
on 13.10.2020.

4. Learned counsel for the petitioners
submits that the orders under challenge
have been passed without application of
judicial
mind
and
mechanically.
He
submits that after filing the complaint, the
Magistrate called for police report and as
per that report filed on 10.06.2020 the
matter
pertained
to
property
dispute
between the parties and all the allegations
were levelled, falsely, only to create
pressure. He further submits that the
opposite party no. 2 took A.T.M. Card of
the applicant no. 1 and had withdrawn Rs.
1,09,000/- on different dates regarding
which a complaint was made to the S.S.P.
Saharanpur on 30.01.2020 as well as on
I.G.R.S. Portal. Thereafter, the application
under Section 156(3) Cr.P.C., was also
3 All. Sanjay Sharma & Ors. Vs. State of U.P. & Ors.
497
filed on 11.03.2020 upon which an F.I.R.
was lodged in Case Crime No. 356 of 2020
under
Sections
379,
406
I.P.C.
on
25.07.2020 at Police Station Sadar Bazar,
District-Saharanpur. He further submits
that the opposite party no. 2 had filed
another complaint against the applicants
and others on 11.03.2020 almost with the
same allegations to cause the harassment of
the applicant and extract money. Learned
counsel for the applicants further submits
that the summoning order as well as the
revisional order are based on the recorded
conversation in C.D. which was made part
of the complaint case, but even from the
hearing of the C.D. it would appear that the
applicants have been falsely implicated.

5. The further submission of the
learned counsel for the petitioners is that
the statement of the Doctor, P.W. 3 did not
support the complaint case, in as much as
his submission is that complainant did not
state the commission of rape to the said
doctor.

6. Learned counsel for the opposite
party no. 2 submits that the averments of
the complaint are supported by the material
on record and do make out case of
commission of cognizable offence against
the applicants. The Magistrate has passed
the order of summoning of applicants
satisfying prima facie that a cognizable
offence is made out and such satisfaction
being based on material on record which
finds consideration by the Magistrate,
including the material in the form of C.D.
filed by the complainant which was also
heard by the said Magistrate, the order of
summoning is perfectly justified. At this
stage, the Magistrate has to satisfy, only
prima facie, for the purposes of summoning
the accused persons. So far as the
submission of the learned counsel for the
applicants, in the nature of the defence of
the applicants is concerned learned counsel
for the opposite party no. 2 submits that at
the stage of summoning, the defense of the
accused persons cannot be considered,
particularly which defense is in the nature
of disputed facts and require evidence for
adjudication which can be done only during
trial. He has placed reliance on the
judgment of Hon'ble the Supreme Court in
the case of Bhushan Kumar versus State
(NCT of Delhi) reported in AIR 2012 SC
1747.

7. Learned counsel for the opposite
party no. 2 further submits that the order
passed in revision does not suffer from any
illegality and calls for no interference in as
much as the revisional court has passed the
order on correct appreciation of the legal
principles as laid down in the judgments
upon which reliance has been placed by the
revisional court in the facts of the present
case.

8. Learned A.G.A. has supported the
stand taken by the learned counsel for the
opposite party no. 2 and has submitted that
the orders under challenge do not suffer
from any illegality and call for no
interference in the exercise of jurisdiction
under Article 227 of the Constitution of
India.

9. I have considered the submissions
advanced by the learned counsel for the
petitioners; for opposite party no. 2 and
learned A.G.A. and has perused the
material on record.

10. It has been well settled by now,
that at the stage of summoning, the
Magistrate is required to apply his judicial
mind only with a view to find out whether a
prima facie case has been made out for
498 INDIAN LAW REPORTS ALLAHABAD SERIES
summoning the accused persons. At this
stage, the Magistrate is not required to
consider the defence version nor is he
required to evaluate the merits of the
materials or evidence of the complainant,
as has been laid down by Hon'ble the
Supreme Court in the case of R.R. Kapur
Vs. State of Panjab, reported in AIR 1960
SC 866 and State of Haryana Vs. Bhajan
Lal, reported in AIR 1992 SCC 604. The
power under Section 482 Cr.P.C. is
exercised by the High Court only in
exceptional circumstances and only when a
prima facie case is not made out against the
accused persons. The disputed defence of
the accused cannot be considered at this
stage.

11. In the case of Bhushan Kumar
(supra), the Hon'ble Supreme Court has
reiterated the above principles. It has been
further held that the summoning order
under Section 204 of the code requires no
explicit reasons to be stated because it is
imperative that the Magistrate must have
taken notice of the accusations and applied
his mind to the allegations made in the
police report and the material filed
therewith. Paragraph nos. 13 to 15 of
Bhushan Kumar (supra), read as follows:

"13) In Smt. Nagawwa vs. Veeranna
Shivalingappa Konjalgi & Ors. (1976) 3
SCC 736, this Court held that it is not the
province of the Magistrate to enter into a
detailed discussion on the merits or
demerits of the case. It was further held
that in deciding whether a process should
be issued, the Magistrate can take into
consideration improbabilities appearing
on the face of the complaint or in the
evidence led by the complainant in
support
of
the
allegations.
The
Magistrate has been given an undoubted
discretion
in
the
matter
and
the
discretion has to be judicially exercised
by him. It was further held that once the
Magistrate has exercised his discretion, it
is not for the High Court, or even this
Court, to substitute its own discretion for
that of the Magistrate or to examine the
case on merits with a view to find out
whether or not the allegations in the
complaint, if proved, would ultimately
end in conviction of the accused.

14) In Dy. Chief Controller of
Imports & Exports vs. Roshanlal Agarwal
& Ors. (2003) 4 SCC 139, this Court, in
para 9, held as under:

9. In determining the question
whether any process is to be issued or
not, what the Magistrate has to be
satisfied is whether there is sufficient
ground for proceeding and not whether
there is sufficient ground for conviction.
Whether the evidence is adequate for
supporting
the
conviction,
can
be
determined only at the trial and not at the
stage of inquiry. At the stage of issuing
the
process
to
the
accused,
the
Magistrate is not required to record
reasons. This question was considered
recently in U.P. Pollution Control Board
v. Mohan Meakins Ltd.(2000) 3 SCC 745
and after noticing the law laid down in
Kanti Bhadra Shah v. State of W.B.
(2000) 1 SCC 722, it was held as follows:
(SCC p. 749, para 6)

"The legislature has stressed the need
to record reasons in certain situations such
as dismissal of a complaint without issuing
process. There is no such legal requirement
imposed on a Magistrate for passing
detailed order while issuing summons. The
process issued to accused cannot be
quashed merely on the ground that the
Magistrate had not passed a speaking
order."

15) In U.P. Pollution Control Board
vs. Dr. Bhupendra Kumar Modi & Anr.,
3 All. Sanjay Sharma & Ors. Vs. State of U.P. & Ors.
499
(2009) 2 SCC 147, this Court, in paragraph
23, held as under:

"It is a settled legal position that at the
stage of issuing process, the Magistrate is
mainly concerned with the allegations
made in the complaint or the evidence led
in support of the same and he is only to be
prima facie satisfied whether there are
sufficient grounds for proceeding against
the accused."

12. In Sonu Gupta versus Deepak
Gupta and others (2015) 3 SCC 424, the
Hon'ble Supreme Court has held as under
in paragraph 8:-

"8...... At the stage of cognizance and
summoning the Magistrate is required to
apply his judicial mind only with a view to
take cognizance of the offence or in other
words to find out whether a prima facie
case is made out for summoning the
accused persons. At this stage, the learned
Magistrate is not required to consider the
defence version or materials or arguments
nor is he required to evaluate the merits of
the
materials
or
evidence
of
the
complainant, because the Magistrate must
not undertake the exercise to find out at
this stage whether the materials would lead
to conviction or not."

13. This Court on perusal of the
complaint finds that the averments thereof
make out a case of commission of
cogniable
offence,
prima
facie
for
summoning of the accused persons. Those
averments are duly supported by the
statement of the complaint under Section
200 Cr.P.C. and of the witness examined
under Section 202 Cr.P.C.

14. The Magistrate, as is evident from
the
order
of
summoning,
heard
conversation as recorded in the C.D. On
consideration of the material before the
Magistrate, in its totality, the Magistrate by
a reasoned and speaking order and after
hearing the applicants has passed the
summoning order being satisfied that prima
facie case for summoning was made out.
Such satisfaction is also reflected in the
order.

15.

Learned
counsel
for
the
petitioners could not demonstrate as to how
the summoning order suffers from illegality
or perversity or improper exercise or that
any case for summoning the accused
persons, was not made out, even prima
facie, on the basis of the averments in the
complaint and the material on record.

16. So far as the submission of
learned counsel for the petitioners, that
there is contradiction in the statement of the
witnesses as from the statement of the
doctor P.W. 3, it is evident that the
complainant did not state about the
commission of rape to the doctor, is
concerned, the said submission deserves
rejection.

17. I have perused the statement of
the doctor P.W.-3, which shows that the
complainant was taken to the hospital, SBD
Hospital Saharanpur, where the Doctor
P.W. 3 attended the complainant on
emergency call from the Hospital and she
was brought in a semi conscious condition
and her condition was not good. Under the
circumstances,
if
no
disclosure
of
commission of rape was made to the
Doctor as alleged, the same cannot be
considered as the contradiction in the
statement of the witnesses, when read along
with the statement of P.W. 1 and P.W. 2.
who have categorically supported the
averments of the complaint of commission
of rape.
500 INDIAN LAW REPORTS ALLAHABAD SERIES

18. So far as the submission of the
learned counsel for the petitioners that the
petitioners have been falsely implicated due
to
some
civil
dispute/family
dispute/matrimonial dispute, the same is in
the nature of their defense, which require
adjudication on the basis of evidence and
cannot be determined at this stage of
summoning in the exercise of jurisdiction
under Article 227 of the Constitution of
India. The disputed defense cannot be
looked at this stage nor can be the basis for
interference with the summoning order.

19. In Harshendra Kumar versus
Rebatilata Koley & others (2011) 3 SCC
351, the Hon'ble Supreme Court has held
that it is fairly well settled that while
exercising
inherent
jurisdiction
under
Section
482
Cr.P.C.
Or
revisional
jurisdiction under Section 397 of the Code
in a case where complaint is sought to be
quashed, it is not proper for the High Court
to consider the defence of the accused or
embark upon an enquiry in respect of the
accusations.

20. The same principles shall apply
when challenge is made to the summoning
order even in a petition under Article 227
of the Constitution of India.

21. The order passed by the
Magistrate is in conformity with the settled
law.

22. So far as the revisional order is
concerned the same is also passed on
consideration of the legal principles and
applying the same correctly to the facts of
the case before the revisional court.

23. In the case of Prasoon Kumar
Srivastava versus State of U.P. 1999 CriLJ
3375 this Court has held that the revision
against the summoning order has to be
disposed of considering whether there was
anything illegal in the summoning order
passed by the Magistrate on the basis of
material placed before him under Sections
200 and 202 Cr.P.C. and if the Court finds
that
there
was
material
before
the
Magistrate and on the said material the
Magistrate was satisfied that a case for
summoning is made out, prima facie, in the
exercise of revisional jurisdiction the Court
will not interfere in such discretion by the
Magistrate. Neither new material could be
considered nor the revisional court could
consider whether the material laid before
the Magistrate under Sections 200 and 202
Cr.P.C. was credible or reliable or not. In
Prasoon (supra) this Court has held as
under in paragraph nos. 7, 8 and 11:-

"7. I may also refer a single Judge
authority of this Court in the case of
Riyasat Ali v. State of U. P., reported in
1992 Cri LJ 1217 wherein it was said:

...When the allegations contained in
the complaint disclose an offence and the
same allegations have been substantiated
by the evidence of the witnesses examined
under Section. 200 and 202 and the
Magistrate is satisfied that there are
reasons to proceed against the accused
persons, the order of the Magistrate should
not be interfered with lightly. It is the
subjective satisfaction of the Magistrate
after taking an objective view of the
allegations made in the complaint and in
the evidence of the witnesses examined by
the complaint. The Sessions Judge while
exercising revisional power is not expected
to find discrepancy in the case of the
complainant.
The
allegations
in
the
complaint and evidence of the witnesses
are to be taken at their face value, as the
Magistrate can himself discharge or acquit
the accused if the accused after appearing
3 All. Chandra Pal Vs. State of U.P. & Anr.
501
before him satisfied the Magistrate in this
regard.

8. It has been held by the Apex Court
in the case of Chandra Deo Singh v.
Prokash Chandra Bose alias Chabi Bose,
reported in AIR 1963 SC 1430 : (1963 (2)
Cri LJ 397):

...Whether the complaint is frivolous
or not has, at that stage, necessarily to be
determined on the basis of the material
placed before him by the complainant.
Whatever defence the accused may have
can only be enquired at the trial.

The Apex Court further said :-

...No doubt, as stated in sub-section
(1) of Section. 202 itself, the object of the
enquiry is to ascertain the truth or
falsehood
of
the
complaint
but
the
Magistrate making the enquiry has to do
this only with reference to the intrinsic
quality of the statements made before him
at the enquiry which would naturally mean
the complaint itself, the statement on oath
made
by
the
complainant
and
the
statements made before him by persons
examined
at
the
instance
of
the
complainant.

11. The plain position is that the
revision against the summoning order has
to be disposed of considering whether there
was anything illegal in the summoning
order passed by the learned Magistrate on
the basis of the material placed before him
under Sections 200 and 202, Cr. P. C. If
there is such prima facie material, as
obviously is present on the record in this
case, then it is not open for this Court to
take into consideration the extraneous
material filed from the side of the accusedrevisionists along with the revision petition.
There is no provision for placing on record
additional material in the revision against
the summoning order and the Court would
be traveling beyond its jurisdiction if it
relied on any extraneous material other
than the material led before the learned
Magistrate under Sections 200 and 202,
Cr. P. C. It is always open to the accused to
place
material
before
the
learned
Magistrate at the trial which may knock the
bottom out of the prosecution case. Any
such material cannot be looked into at this
stage to Judge whether the material led
before the learned Magistrate under
Sections 200 and 202, Cr. P. C. was
credible or reliable or not."

24. The order passed by the revisional
Court is also perfectly in accordance with
law.

25. This Court does not find any
illegality in the orders under challenge.

26. The petition under Article 227 of
the Constitution of India is devoid of merit.
The prayer for quashing the summoning
order and the revisional order, along with
the proceedings of the complaint case, is
hereby refused. This petition is dismissed.

27. No orders as to cost.
----------
(2021)03ILR A501
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Application U/S 482 No. 1325 of 2021

Chandra Pal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sunil Kumar Yadav

Counsel for the Respondents: