DHARMENDRA Vs. STATE OF U P

JUDGEMENT

(1.) K. N. Ojha, J. Heard learned counsel for the revisionist and the learned AGA. The revision is being disposed of at the admission stage.

(2.) INSTANT revision has been preferred against the order dated 1-11-2003 passed by the Chief Judicial Magistrate, Ghazipur, in Criminal Complaint No. 5003 of 2003, Kamal alias Moosan Rajbhar v. Dharmendra and three others, by which Dharmendra, Gyanendra Deval @ Gopal, Dharmdev alias Dharmu and Chhedi, have been summoned to face trial under Sections 452, 323, 504, 506 I. P. C. The impugned order was passed ofter recording statement of Kamla @ Moosan Rajbhar under Section 200 Cr. P. C. and of witnesses Brijesh P. W. 1, and Munna P. W. 2 under Sections 202 Cr. P. C. and also after perusing inquiry report, x-ray report and other papers.

(3.) IN 1976 SCC (Criminal) 507, Smt. Nagawwa v. V. S. Konjalgi and others, Hon'ble the Apex Court has held that in a proceeding under Section 202 Cr. P. C. the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not. It is not the power of the Magistrate to enter into the merit or demerit nor the High Court can go into this matter in its revisional jurisdiction, which a very limited one. Once the Magistrate has exercised its discretion, it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merit with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused, but such order passed by the Magistrate can be quashed if the complainant does not disclose the essential ingredients of an offence which is alleged against the accused or where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused or where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible or where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of complaint by legally competent authority.