THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.1716 OF 2023
O R D E R:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioners-Accused Nos.1 and 2 to quash the proceedings against them in C.C. No.10145 of 2022 pending on the file of learned II Additional Chief Metropolitan Magistrate, Hyderabad. The offences alleged against them are under Sections 324, 386, 420 and 506 of the Indian Penal Code (for short 'IPC').
2. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for respondent - State. Perused the record.
3. The petitioners are questioning the Orders of the learned Magistrate in taking cognizance and issuance of summons to the petitioners to appear and face criminal trial for the aforesaid offences. The said cognizance was taken by the learned Magistrate on the basis of a private 2 complaint filed by the 2nd respondent without going into facts of the case.
4. Prime Facie, the order of the learned Magistrate is contrary, as law laid down by the Hon'ble Supreme Court in Sunil Bharti Mitthal Vs. Central Bureau of Investigation1 in Criminal Appeal Nos.34 to 37 of 2015 dated 09.01.2015, wherein it is held as follows:
"52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the 1 (2015) 4 Supreme Court Cases 609 3 order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
5. Further, in the Judgment of P.S.Meherhomji Vs K.T.Vijay Kumar and Others2 in Crl.A.No.2211 of 2014 dated 14.10.2014, it is held as "13. Indisputably, judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly.
14. It is equally well settled that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the 2 (2015) 1 Supreme Court Cases 788 4 law applicable thereto. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court and to quash the proceeding instituted on complaint but such power could be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of power Under Section 482."
6. As the learned Magistrate has not narrated any reasons in the order for summoning the accused, the orders have to be set aside. Further the issuance of process to face criminal trial is a serious issue and the Magistrate cannot order summoning of the accused without giving any reasons and what prompted the accused to take cognizance on the basis of facts of the case. Since the reasons are lacking in the order for taking cognizance and issuing summons, the said docket order dated 13.12.2022 is set aside. However, this order will not preclude the learned 5 Magistrate from taking cognizance by giving appropriate reasons.
7. Learned Senior counsel for the petitioners submitted that petitioner/accused No.2 has been remanded to judicial custody.
8. In view of the orders of this Court setting aside the cognizance order dated 13.12.2022, in the event of petitioner - accused No.2 filing an application seeking bail, the Court concerned shall pass an appropriate order releasing accused No.2 on the very same day of filing the bail application.
9. Accordingly, the Criminal Petition is allowed.
Miscellaneous applications pending, if any, shall stand closed.
__________________ K.SURENDER, J Date: 27.02.2023 tmk 6 7 THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.1716 OF 2023 Date: 27.02.2023 tmk