Rao Ahmad Ali vs State of Uttaranchal

Hon''ble Prafulla C. Pant, J.—Heard

By means of this petition, moved u/s 482 of Code of Criminal Procedure. the Petitioner has sought quashing of the order dated 08.06.2005, passed by the revisional court whereby said court has dismissed the criminal revision No. 221 of 2004, and affirmed the summoning order dated 28.05.2004, passed by Chief Judicial Magistrate, Roorkee, in criminal case No. 50 of 2004, Jareena Begum v. Rao Ahmad Ali, relating to offences punishable u/s 452, 323, 504, 506 of I.P.C, Police Station, Bhagwanpur District Haridwar.

By said order the Respondent No. 3 had summoned the accused (present Petitioner) in the aforesaid criminal case.

Learned Counsel for the Petitioner submitted that earlier same complainant (respondent No. 4), in respect of same incident filed criminal case No. 1272 of 2001, which was dismissed on 07.01.2004, in absence of the complainant. Copy of said order is Annexed as Annexure 3 to the petition. It is argued on behalf of the Petitioner that fresh criminal complaint No. 50 of 2004 was filed in which the Magistrate (respondent No. 3) summoned the accused (petitioner) without recording the statement of the complainant u/s 200 and that of witnesses u/s 202 of Code of Criminal Procedure. It is contended that the trial court has also committed error of law in summoning the accused without recording statement of the complainant and the witnesses u/s 200 and that of 202 of Code of Criminal Procedure. It is further contended that the revisional court has also committed error of law in dismissing the revision and affirming the summoning order passed by Judicial Magistrate.

If the criminal complaint is dismissed for non prosecution, before framing of the charge, in respect of a warrant trial, fresh criminal complaint could have been filed explaining the absence on the date on which the earlier complaint was dismissed but the Magistrate can not summon the accused on the basis of the evidence u/s 200 of 3 Code of Criminal Procedure recorded by the Magistrate who had entertained the earlier complaint. The Respondent No. 3 has not recorded the statement of the complainant and the witnesses u/s 200 and 202 of Code of Criminal Procedure, for coming to the conclusion that the offences are made out against the accused (petitioner). The Magistrate has committed error in summoning the accused without recording the statement of the complainant u/s 200 of Code of Criminal Procedure.

Therefore, this petition deserves to be allowed. The petition u/s 482 of Code of Criminal Procedure is allowed. The proceedings of criminal complaint case No. 50 of 2004 Jareena Begum v. Rao Ahmad Ali, relating to offences punishable u/s 452, 323, 504, 506 I.P.C, are hereby quashed.