# Saurav Gupta & Ors v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-04
- **Case number:** Application U/S 482 No. 19231 of 2016
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurav-gupta-ors-v-state-of-u-p-anr-50951
- **Pages:** 9

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202, 202(1), 202(2),
204 & 482 - Indian Penal Code, 1860 -
Sections 406 - Application U/s 482 Cr.P.C. -
for quashing the summoning order in a
complaint case - offence of criminal breach of
trust - applicants argued that the complaint is
retaliatory, filed after a matrimonial dispute, and
based on false claims, including allegations of
dowry which they deny - and since they reside
outside the Magistrate's jurisdiction, an enquiry
under Section 202 Cr.P.C. was mandatory but
not
properly
conducted
-
hence
instant
application - court finds that, upon careful
scrutiny
of
the
complaint,
supporting
documents,
and
witness
testimonies,
the
Magistrate applied his mind and recorded
satisfaction that a prima facie case was made
out
-
The
court
emphasized
that
such
satisfaction must not be mechanical and must
reflect judicial application of mind, which was
evident in this case - The applicants' claims
regarding dowry and the nature of the marriage
were deemed matters of defence to be tested
during trial - Court held that the Magistrate had
duly complied with the mandatory requirements
under Sections 200, 202, and 204 Cr.P.C. before
issuing the summoning order - against the
applicants in a complaint under Section 406
I.P.C. - Consequently, the application seeking
quashing of the summoning order was found to
be meritless and was dismissed.
(Para - 19, 20, 21, 22)

Application Dismissed. (E-11)

List of referred Cases: -

## Text

388 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
(2024) 3 ILRA 388
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 19231 of 2016

Saurav Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Akhilesh Chandra Shukla, Sri Ajay
Kumar

Counsel for the Opposite Parties:
G.A., Sri Amit Saxena, Sri Madan Mohan
Chaurasia, Sri Vidya Prakash Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202, 202(1), 202(2),
204 & 482 - Indian Penal Code, 1860 -
Sections 406 - Application U/s 482 Cr.P.C. -
for quashing the summoning order in a
complaint case - offence of criminal breach of
trust - applicants argued that the complaint is
retaliatory, filed after a matrimonial dispute, and
based on false claims, including allegations of
dowry which they deny - and since they reside
outside the Magistrate's jurisdiction, an enquiry
under Section 202 Cr.P.C. was mandatory but
not
properly
conducted
-
hence
instant
application - court finds that, upon careful
scrutiny
of
the
complaint,
supporting
documents,
and
witness
testimonies,
the
Magistrate applied his mind and recorded
satisfaction that a prima facie case was made
out
-
The
court
emphasized
that
such
satisfaction must not be mechanical and must
reflect judicial application of mind, which was
evident in this case - The applicants' claims
regarding dowry and the nature of the marriage
were deemed matters of defence to be tested
during trial - Court held that the Magistrate had
duly complied with the mandatory requirements
under Sections 200, 202, and 204 Cr.P.C. before
issuing the summoning order - against the
applicants in a complaint under Section 406
I.P.C. - Consequently, the application seeking
quashing of the summoning order was found to
be meritless and was dismissed.
(Para - 19, 20, 21, 22)

Application Dismissed. (E-11)

List of referred Cases: -

1.
Birla
Corporation
Limited
Vs
Adventz
Investments & Holdings Ltd. & ors.- AIR 2019
SC (Criminal) 1025,

2. Mahmood Ul Rehman Vs Khazir Mohammad
Tunda & ors.- AIR (2015) SC 2195,

3. U.O.I.Vs Ashok Kumar Sharma (2021) 12 SCC
674,

4. Jagdish Ram Vs St. of Rajasthan & anr.(2004)
4 SCC 432,

5. Deepak Gaba Vs St. of U.P. (2023) (3) SCC
423.

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Ajay Kumar, Advocate
holding brief of Sri Akhilesh Chandra
Shukla, learned counsel for the applicants,
Sri Vidya Prakash Singh, learned counsel
for opposite party no.2 and Sri Pankaj
Srivastava, learned A.G.A. for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of summoning order dated
02.05.2015 passed by learned Additional
Chief Judicial Magistrate, Court No.3,
Ghaziabad in Complaint Case No.2953 of
2014, under Section 406 I.P.C., Police
Station - Sihani Gate, District Ghaziabad.

3. Learned counsel for the applicants
submits that the instant criminal complaint
3 All. Saurav Gupta & Ors. Vs. State of U.P. & Anr.
389
filed by opposite party no.2 is a counter
blast to the Application under Section 9 of
Hindu Marriage Act, filed by applicant no.1
herein as the opposite party no.2 had left
the company of applicant no.1 without any
reasonable cause, therefore, the instant
complaint has been filed on false and
fabricated facts. The opposite no.2 had sent
a notice on 02.07.2017 and asked the
applicants to return the articles. The said
legal notice was duly replied by applicant
no.1 and it was stated that no such articles
as has been mentioned in the list annexed
with the notice, have ever been received by
the applicants, therefore, there is no
question of returning the same. Learned
counsel for the applicants further submits
that no dowry was given by opposite party
no.2 or her family members as the marriage
between the parties has taken place through
their interaction on the Facebook etc.
Learned counsel for the applicants further
argued that as per Section 202 Cr.P.C.,
since the applicants herein were residing
outside
the
jurisdiction
of
learned
Magistrate then the enquiry under Section
202 Cr.P.C. is mandatory and no such
enquiry has been conducted. Learned
counsel for the applicants further submits
that the impugned summoning order dated
02.05.2015 is illegal, which has been
passed without conducting any enquiry
under Section 202 Cr.P.C. In support of his
submission,
learned
counsel
for
the
applicants has relied upon the paragraph
no.34 of the judgment of Apex Court in
Birla Corporation Limited Vs. Adventz
Investments and Holdings Limited and
others : AIR 2019 SC (Criminal) 1025,
which reads as follows:

"34. 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. The
application of mind has to be indicated by
disclosure of mind on the satisfaction........"

4. On a query made to learned counsel
for the applicants that whether even if it is
accepted that the enquiry under Section 202
Cr.P.C. is mandatory and if learned
Magistrate in terms of Section 202 Cr.P.C.
decides to conduct an enquiry himself, as
the discretion is given to the Magistrate,
then what type of enquiry the Magistrate is
required to conduct in the matter when a
complaint and the statement under Sections
200 and 202 Cr.P.C. are available before
the Magistrate, the learned counsel for the
applicant has relied upon the observations
made by the Apex Court in Mahmood Ul
Rehman Vs. Khazir Mohammad Tunda &
others : AIR (2015) SC 2195, which reads
as follows:

"........ There must be sufficient
indication in the order passed by the
Magistrate that he is satisfied that the
allegations in the complaint constitute an
offence and when considered along with
the statements recorded and the result of
inquiry or report of investigation under
Section 202 Cr.P.C., if any, the accused is
answerable before the criminal court, there
is ground for proceeding against the
accused under Section 204 Cr.P.C., by
issuing
process
for
appearance.
The
application of mind is best demonstrated by
disclosure of mind on the satisfaction........"

5. In view of the aforesaid,
learned counsel for the applicants submits
that such enquiry has been conducted
without issuing any notice to the applicants.

6. Per contra, learned counsel for
opposite party no.2 has relied upon
paragraph no.61 of the said judgment of
Apex Court in Birla Corporation Limited
(supra), which reads as follows:
390 INDIAN LAW REPORTS ALLAHABAD SERIES

"61. The object of investigation
under Section 202 Cr.P.C. is "for the
purpose of deciding whether or not there is
sufficient ground for proceeding". The
enquiry under Section 202 Cr.P.C. is to
ascertain the fact whether the complaint has
any valid foundation calling for issuance of
process to the person complained against or
whether it is a baseless one on which no
action need be taken. The law imposes a
serious responsibility on the Magistrate to
decide if there is sufficient ground for
proceeding against the accused. The
issuance
of
process
should
not
be
mechanical nor should be made as an
instrument of harassment to the accused. As
discussed earlier, issuance of process to the
accused calling upon them to appear in the
criminal case is a serious matter and lack of
material particulars and non-application of
mind as to the materials cannot be brushed
aside on the ground that it is only a
procedural irregularity...."

7. Learned counsel for opposite party
no.2 submits that before summoning the
applicants, learned Magistrate, after perusal
of the allegations made in the complaint,
decided to conduct an enquiry into the
allegations made in the complainant before
issuing the summons to the accused
persons and after recording the statement of
the complainant under section 200 Cr.P.C.
also recorded the statement of witnesses
produced by the complainant under section
202 Cr.P.C. to complete the enquiry as
contemplated under section 202 Cr.P.C. and
after
considering
the
entire
material
including the statement of witnesses, the
Magistrate has recorded his satisfaction that
there is a prima facie case against the
applicants herein, and thereafter, has
summoned the applicants for trial in the
said complaint filed by the Opposite Party
No. 2. Therefore, the summoning order
dated 02.05.2015 is not mechanical, but
was passed by the learned Magistrate after
conducting the enquiry as contemplated
under section 202 Cr.P.C. and recording his
satisfaction that a prima case is made out
against the applicants herein, as if the
averments made in the complaint and in the
statements under section 200 and 202
Cr.P.C., goes unrebutted during the trial,
this material is sufficient to convict the
accused for which they are summoned.

8. Having heard the submissions
made by learned counsel for the parties,
this Court has carefully perused the record
of the case.

9. For the proper adjudication of the
instant application, it is relevant to quote
the provisions of Section 200, 202 and 204
Cr.P.C.

"200.
Examination
of
complainant
-
A
magistrate
taking
cognizance of an offence on complaint
shall, examine upon oath the complainant
and witnesses present, if any and the
substance of such examination shall be
reduced into writing and shall be signed by
the complainant and witnesses and also by
the magistrate:

Provided
that,
when
the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses -

(a) if a public servant acting or
purporting to act in the discharge of his
official duties or a court has made the
complaint; or

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under Section 192:

Provided further that if the
Magistrate makes over the case to another
Magistrate
under
Section
192
after
3 All. Saurav Gupta & Ors. Vs. State of U.P. & Anr.
391
examining
the
complainant
and
the
witnesses, the latter Magistrate need not reexamine them."

202. Postponement of issue of
process: 1. Any Magistrate, on receipt of a
complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under section 192,
may, if he thinks fit and shall in a case
where the accused is residing at a place
beyond the area in which he exercises his
jurisdiction, postpone the issue of process
against the accused, and either inquire into
the case himself or direct an investigation
to be made by a police officer or by such
other person as he thinks fit, for the
purpose of deciding whether or not there is
sufficient ground for proceeding;

Provided that no such direction
for investigation shall be made-

(a) where it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Sessions; or

(b) where the complaint has not
been made by a Court, unless the
complainant and the witnesses present (if
any) have been examined on oath under
section 200.

2. In an inquiry under SubSection (1), the Magistrate may, if he thinks
fit, take evidence of witness on oath;

Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session, he shall call upon the complainant
to produce all his witnesses and examine
them on oath.

3. If an investigation under SubSection (1) is made by a person not being a
police officer, he shall have for that
investigation all the powers conferred by
this Code on an officer in charge of a police
station except the power to arrest without
warrant.

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
accuse, or

(b) a warrant-case, he may issue a
warrant, of, 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 subsection (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 subsection (1) shall be accompanied 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 an, if such fees are
not paid within a reasonable time, the
Magistrate mayu dismiss the complaint.

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

10. From reading of the provisions of
Section 200 and 204 Cr.P.C. it is clear that
on presentation of the complaint filed under
section 200 Cr.P.C. by an individual, the
Magistrate is required to examine the
complainant and the witnesses present, if
any.
Thereafter,
on
perusal
of
the
allegations made in the complaint, the
statement of the complainant on solemn
affirmation and the witnesses examined, the
Magistrate has to get himself satisfied that
392 INDIAN LAW REPORTS ALLAHABAD SERIES
there are sufficient grounds for proceeding
against
the
accused
and
on
such
satisfaction, the Magistrate may direct for
issuance of process as contemplated under
section 204 Cr.P.C. The purpose of the
enquiry under Section 202 Cr.P.C. is to
determine whether a prima facie case is
made out and whether there is sufficient
ground for proceedings against the accused.

11. Under the amended sub-section
(1) to Section 202 Cr.P.C. (as amended by
Cr.P.C. (Amendment) Act, 2005, with effect
from 23.6.2006), it is obligatory upon the
Magistrate that before summoning an
accused, who is residing beyond its
jurisdiction,
to
conduct
an
enquiry,
However, the Magistrate has discretion to
opt any of the three options available to
him to conduct such enquiry. a) he may
enquire into the case himself or; b) direct
the investigation to be made by a police
officer or; c) by such other person as he
thinks fit. The object of such enquiry is to
find out whether or not there is sufficient
ground for proceedings against the accused.
The need for such amendment was felt by
the legislature, as false complaints were
filed against persons residing at far off
places in order to harass them. The object
of the amendment is to ensure that persons
residing at far off places are not harassed
by filing false complaints making it
obligatory for the Magistrate to enquire.

12. The Apex Court in the case of
Vijay Dhanuka and Others v. Najima
Mamtaj and Others (2014) 14 SCC 638,
considering the scope of amendment to
Section 202 Cr.P.C., has held as under:-

"12. ....The use of the expression
"shall" prima facie makes the inquiry or the
investigation, as the case may be, by the
Magistrate mandatory. The word "shall" is
ordinarily mandatory but sometimes, taking
into account the context or the intention, it
can be held to be directory. The use of the
word "shall" in all circumstances is not
decisive. Bearing in mind the aforesaid
principle, when we look to the intention of
the legislature, we find that it is aimed to
prevent innocent persons from harassment
by
unscrupulous
persons
from
false
complaints. Hence, in our opinion, the use
of
the
expression
"shall"
and
the
background and the purpose for which the
amendment has been brought, we have no
doubt in our mind that inquiry or the
investigation, as the case may be, is
mandatory before summons are issued
against the accused living beyond the
territorial jurisdiction of the Magistrate."

Since the amendment is aimed to
prevent
persons
residing
outside the
jurisdiction of the court from being
harassed, it was reiterated that holding of
enquiry is mandatory. The purpose or
objective behind the amendment was also
considered by this Court in Abhijit Pawar v.
Hemant Madhukar Nimbalkar and Another
(2017) 3 SCC 528 and National Bank of
Oman v. Barakara Abdul Aziz and Another
(2013) 2 SCC 488."
(Emphasis supplied)

13.. In Jagdish Ram v. State of Rajasthan
and Another (2004) 4 SCC 432, the Apex
Court has held as under:-

"10. ....The taking of cognizance of the
offence is an area exclusively within the
domain of a Magistrate. At this stage, the
Magistrate has to be satisfied 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
3 All. Saurav Gupta & Ors. Vs. State of U.P. & Anr.
393
the stage of inquiry. At the stage of issuing
the process to the accused, the Magistrate is
not required to record reasons."

(Emphasis supplied)

14. In Union of India Vs. Ashok
Kumar Sharma (2021) 12 SCC 674, the
Supreme Court in paragraph 50 held as
under:

"50. The learned Amicus Curiae,
when queried about the procedure to be
adopted when a complaint is lodged by
persons falling in Section 32(C) and (d),
viz., the aggrieved person or a voluntary
association, it was submitted that the
Magistrate can, under Section 202 of the
CrPC, order an investigation by the Police
Officer or any other person. A perusal of
Section 202 would show that in regard to
an offence falling under Chapter IV of the
Act, being exclusively triable, by a Court of
Sessions, the proviso to sub-Section (1) to
Section 202 prohibits the direction for
investigation under Section 202. The
proviso to sub-Section (2) of Section 202
contemplates that when an offence is
exclusively triable by the Court of
Sessions, and the Magistrate proceeds
under Section 202 of the CrPC, he is duty
bound to call upon the complainant to
produce all its witnesses and examine them
on oath. Thus, the effect of the two
provisions in sub-Sections (1) and (2),
respectively, is as follows: a Magistrate
proceeding under Section 202 of the CrPC,
is subjected to two conditions:

(a) Unlike in an ordinary case,
meaning thereby, an offence which is not
exclusively triable by a Court of Sessions,
in a case where it is an offence exclusively
triable by a Court of Sessions, the inquiry
can be conducted only by a Magistrate
himself. It is not open to him to cause an
investigation be it by a Police Officer or
any other person.

(b) In regard to the inquiry so
conducted by him, he must call upon the
complainant to produce all his witnesses
and they must be examined not on the basis
of any affidavit, and not without the
support of an oath but the examination
must be under an oath. It is to be
remembered that under the provisions
existing under the previous Code, an
elaborate preliminary inquiry where even
an accused had right of cross-examination
of witnesses, was contemplated at the
hands of the Magistrate before the
committal order was passed. This no longer
survives after the amendment."
(Emphasis supplied)

15. The Supreme Court relying upon
the judgement in the case of Birla
Corporation Limited (supra), in the case of
Deepak Gaba Vs. State of U.P. (2023) (3)
SCC 423 has held in paragraphs 31 and 32
as under:

"30. Even though at the stage of
issuing
process
to
the
accused
the
Magistrate is not required to record detailed
reasons, there should be adequate evidence
on record to set the criminal proceedings
into motion. The requirement of Section
204 of the Code is that the Magistrate
should carefully scrutinize the evidence
brought on record. He/she may even put
questions to complainant and his/her
witnesses when examined under Section
200 of the Code to elicit answers to find out
the truth about the allegations. Only upon
being satisfied that there is sufficient
ground for summoning the accused to stand
the trial, summons should be issued.
31. Summoning order is to be passed when
the complainant discloses the offence, and
when there is material that supports and
394 INDIAN LAW REPORTS ALLAHABAD SERIES
constitutes essential ingredients of the
offence. It should not be passed lightly or
as a matter of course. When the violation of
law alleged is clearly debatable and
doubtful, either on account of paucity and
lack of clarity of facts, or on application of
law to the facts, the Magistrate must ensure
clarification
of
the
ambiguities.
Summoning without appreciation of the
legal provisions and their application to the
facts may result in an innocent being
summoned to stand the prosecution/trial.
Initiation of prosecution and summoning of
the accused to stand trial, apart from
monetary loss, sacrifice of time, and effort
to
prepare
a
defence,
also
causes
humiliation and disrepute in the society. It
results in anxiety of uncertain times."

16. The Supreme Court in the case of
Chandra Deo Singh v. Prokash Chandra
Bose alias Chabi Bose and Another AIR
1963 SC 1430 and in a series of judgments
has held that the object of an enquiry under
Section 202 Cr.P.C. is for the Magistrate to
scrutinize the material produced by the
complainant to satisfy himself that the
complaint is not frivolous and that there is
evidence/material which forms sufficient
ground for the Magistrate to proceed to
issue process under Section 204 Cr.P.C. It
is the duty of the Magistrate to elicit every
fact that would establish the bona fides of
the complaint and the complainant.

17. Reference to the judgments of the
Supreme Court, would clearly show that
the allegations in the complaint and
complainant's
statement
and
other
materials must show that there are
sufficient grounds for proceeding against
the accused. In the light of the above
principles, the court proceeded to consider
the instant case whether the allegations in
the complaint and the statement of the
complainant and other materials before the
Magistrate were sufficient enough to
constitute prima-facie case to justify the
Magistrate's satisfaction that there were
sufficient grounds for proceeding against
the accused and whether there was
application of mind by the learned
Magistrate in taking cognizance of the
offences and issuing process to the accused.

18. The enquiry under section 202
Cr.P.C. is to ascertain the fact that the
complaint has any valid foundation calling
for issuance of process to the persons
complained against or whether it is a
baseless case on which no action need be
taken. It is the serious responsibility of the
Magistrate to decide as to whether there is
sufficient ground for proceeding against the
accused and process should not be
mechanical nor should be made as an
instrument of harassment to the accused.

19. As pointed out earlier, the object
behind the amendment to Section 202
Cr.P.C. is to ensure that innocent persons
who are residing at far off places are not
harassed by unscrupulous persons. The
amendment therefore, makes it obligatory
upon the Magistrate that before summoning
the
accused
residing
beyond
the
jurisdiction, the Magistrate has to enquire
the
case
either
himself
or
direct
investigation to be made by the police
officer or any other person, so authorised.
When in exercise of the obligation as
mandated under section 202 Cr.P.C., when
the accused is the resident of beyond the
jurisdiction
of
such
Magistrate,
the
Magistrate applying his discretion decides
to conduct such enquiry himself, then the
scope and method of enquiry is provided in
section 202(2) Cr.P.C., which mandates that
the
Magistrate
shall
call
upon
the
Complainant to examine the witnesses on
oath in support of his complaint and after
3 All. Saurav Gupta & Ors. Vs. State of U.P. & Anr.
395
such statement under section 202 (2)
Cr.P.C. are recorded, that is the sufficient
compliance of mandatory enquiry to be
conducted under Section 202(1) Cr.P.C.
Thus, if on perusal of such material i.e. the
Complaint, the documents placed in
support of the complaint and the Statement
of complainant under section 200 and
Statement of witnesses under section 202,
the Magistrate after applying his mind, is
satisfied that a prima facie case is made out
against the accused, the he is justified in
summoning the accused under section 204
Cr.P.C.

20. In the present case the learned
Magistrate has opted to hold the enquiry as
contemplated under section 202(1) Cr.P.C.
himself and called upon the Complainant to
produce her witnesses. After recording the
statements of witnesses under section
202(2), the Magistrate considered the entire
material including the complaint, Statement
of complainant under section 200 and the
statements of witnesses under section 202
Cr.P.C., who had supported the averments
made in the complaint and thereupon the
Magistrate has recorded his satisfaction that
a prima facie case is made out against the
applicants herein, therefore, the Magistrate
vide order dated 02.05.2015 has summoned
the applicants herein. The impugned
summoning order dated 2.5.2015 passed by
the Magistrate reads as under:

"02.05.2015

पुकार करायी गयी। पत्रावली पेर्श हुयी। िलबी के
वबन्िु पर पाररवाविनी के ववद्वान अविवक्ता को सुना िथा पत्रावली
का अवलोकन वकया।

सांक्षेप में पररवाविनी का अपने पररवाि पत्र में
कथानक इस प्रकार है वक पररवाविनी का वववाह सौरभ गुप्ता के साथ
विनाांक 15.4.12 को हुआ था वजसमें पररवाविनी के मािा वपिा ने
बीस लाख रूपये खचा वकया था िथा िान िहेज व स्त्रीिन के रूप में
काफी सामान विया था वजसकी सूची सांलग्न है। लेवकन िो िीन माह
के पिाि कम िहेज का िाना िेकर अविररक्त िहेज की माांग करिे
हुये 6 लाख रूपये की माांग करने लगे िथा पररवाविनी को िरह िरह
से िांग व परेर्शान करने लगे। ववपक्षीगण ने र्शािी की सालवगरह
विनाांक 15.04.13को पररवाविनी को मारपीट कर राि करीब िस
बजे केवल पहने हुए कपड़े में अपने घर से वनकाल विया िथा िब से
आज िक वह अपने मायके में रह रही है। र्शािी में विया गया सभी
िान िहेज उपहार स्त्रीिन अब ववपक्षीगण की वहरासि में है को
पररवाविनी को लौटाने िथा उसकी मजी के बगैर अपने इस्िेमाल में
न करने व खुिा बुिा न करने के वलये एक कानूनी नोटस डाक द्वारा
अपने अविवक्ता के माध्यम से भेजा लेवकन ववपक्षीगण ने बाबजूि
कानूनी नोवटस के पररवाविनी के उक्त स्त्रीिन को न िो लौटा रहे है
िथा न ही उसको अपने इस्िेमाल में लेना बन्ि वकया है। िथा उसे
खुिा बुिा कर विया है। वजसकी वर्शकायि सांबांविि थाना वसांहानी गेट
में की लेवकन उसकी कोई ररपोटा िजा नहीं की उसके उपरान्ि एक
वलवखि प्राथानापत्र एस एस पी गावजयाबाि को विया वजसकी बाबि
आज िक कोई कायाावही नहीं हुई। िब जाकर यह प्राथानापत्र
न्यायालय के समक्ष प्रस्िुि वकया है।

इसी आर्शय का बयान पररवाविनी ने िारा 200
ि०प्र०सां० के अन्िगाि लेखबद्ध कराया है िथा िारा 202
िां०प्र०सां० में साक्षी पी०डब्लू०1 महेन्र पाल पुत्र फूलचन्ि व
पी०डब्लू० 2 उमेर्श अग्रवाल पुत्र महेन्र पाल को पेर्श वकया है
वजसमें पररवाविनी के अनुसार बयान विया है। उपरोक्त पररवाि
कथानक पररवािी व पररवािी द्वारा प्रस्िुि साक्षी के बयानों के प्रकार्श
में प्रथम दृष्टया ववपक्षी सौरव गुप्ता जगिीर्श श्रीमिी वकरनबाला समीर
गुप्ता के बयानों द्वारा भ०िां०सां० की िारा 406 का अपराि काररि
वकया जाना िवर्शाि होिा है। ववपक्षीगण िद्नुसार उपरोक्त िारा में
अवभयुक्त ववचारण हेिु िलब वकये जाने योग्य है।

आिेर्श

ववपक्षी सौरव गुप्ता जगिीर्श श्रीमिी वकरनबाला समीर
गुप्ता को भा०िां०सां० की िारा 406 के िहि अवभयुक्त के रूप में
ववचारण हेिु िलब वकया जािा है। पररवािी अन्िर 10 विवस पैरवी
करे। पररवाि वास्िे हावजरी अवभयुक्त विनाांक 04.08.15 को पेर्श
हो।

अपर मुख्य न्यावयक मवजस्ट्रेट

कोटा सां० 3 गावजयाबाि "

21. From the above, it is amply clear
that the Magistrate adopted to hold enquiry
himself and thereafter after considering the
statements of the complainant and the
witnesses, namely, Mahendra Pal and
Umesh Agarwal under sections 200 and
202 Cr.P.C. arrived at a conclusion that
prima facie a case is made out against the
396 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants herein, thereafter summoned the
applicants herein. In the present case
perusal of the impugned summoning order
clearly shows that the Magistrate has
recorded his satisfaction and applied his
mind and after considering the statements
of the complainant and the witnesses has
passed the impugned summoning order,
which requires no interference by this
Court.

22. From perusal of complaint as
well as the statement under Section 200 and
202 Cr.P.C., recorded by the Magistrate in
terms of Section 202 Cr.P.C. the court is of
the considered opinion that prima facie a
case is made out against the applicants
under Section 406 I.P.C. Section 202
Cr.P.C.
does
not
mandate
that
the
Magistrate should conduct any enquiry to
collect the material which was not before
him. On the basis of material available
before him a prima facie satisfaction has
been recorded and a prima facie case is
made out against the applicants herein
which is sufficient for compliance of an
enquiry under Section 202 Cr.P.C. What is
prohibited in terms of the judgment of
Apex Court in Birla Corporation Limited
(supra) that the Magistrate could not pass
any order mechanically and he has to apply
his mind to the material available before
him and on the basis of scrutiny of the
material he should record his satisfaction,
which has been categorically recorded in
the instant case. So for as the submissions
of learned counsel for the applicants with
regard to his claim that no dowry etc. was
given by opposite party no.2 and her
family
members
and
the
marriage
between the parties had taken place out of
their interaction through Facebook, that is
defence of the applicants, which has to be
established during trial of the applicants.

23. In view of the above, the instant
application is devoid of merit and is hereby
dismissed.
---------
(2024) 3 ILRA 396
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Application U/S 482 No. 41397 of 2023

Dinesh Jatav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Kumar Patel, Sri Ashutosh
Kumar Gautam

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 156(3), 173(2), 190
& 482 - Indian Penal Code, 1860 -
Sections 279 & 304-A - Application u/s 482 -
challenging the summoning order - accident -
complaint - FIR registered - informant alleged
that his brother died due to a motorcycle
accident caused by the rash driving of accused
applicant - investigation - police submitted final
report - mention that deceased was driving
carelessly with two pillion riders and accidentally
struck a gas cylinder tied to accused's
motorcycle, finding no evidence against accused
and recommending his exoneration - Protest
petition - FR was rejected - summon order -
challenges this order, accused applicant argued
that the Magistrate erred in law by not following
the procedure under Chapter XV Cr.P.C. and
cites precedent to support setting aside the
impugned order and accepting the final report -
court finds that, the impugned order was based
solely on investigation material, not on any
additional documents from the complainant,
making the precedent cited by the applicant