Allahabad High Court
Harendra Singh vs State Of U.P. & Others on 10 July, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Court No. - 23
Case :- CRIMINAL REVISION No.- 926 of 2004
Appellant :- Harendra Singh.
Respondent :- State of U.P. & Others.
Counsel for Appellant :- P.C. Srivastava
Counsel for Respondent :- Govt. Advocate
Hon'ble Pramod Kumar Srivastava, J.
1.Heard learned counsel for the revisionist and learned AGA and perused records.
2.This revision has been filed against the judgment and order dated 24-01-2004 passed by Addl. Sessions Judge, Court No.-10, Aligarh in Criminal Revision no.50/ 2003 Rakesh & Others vs. State of U.P. & Another, by which revision against summoning order dated 25-11-2002 passed by Judicial Magistrate, Court No. 8, Aligarh in Complaint case no. 2112/ 2002 (registered on protest petition against final report in case crime no. 2849/ 2001 section 364 IPC, p.s. Tappal, Aligarh) was allowed, and matter was remanded for reconsideration of matter and proceed in accordance with law.
3.In complaint case filed for offence u/s 364 CrPC complainant examined himself u/s 200 CrPC and three witnesses u/s 202 CrPC. Then Magistrate Court had passed summoning order dated 25-11-2002 for offence u/s 364 IPC for eight accused persons. This order was challenged in Criminal Revision no.50/ 2003 Rakesh & Others vs. State of U.P. & Another which was allowed by impugned order dated 24-01-2004 passed by Addl. Sessions Judge, Court No.-10, Aligarh.
4.Lower revisional court had discussed provisions of section 202 CrPC and held that mandatory and necessary procedural formalities had not been followed by Magistrate before passing the summoning order, therefore said order is erroneous. Section 202 CrPC reads as under:
"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, 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 Session; 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 sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses 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.
(2) - - -.
(3) - - -."
5.In case in hand application u/s 156(3) CrPC was moved on basis of suspicion. Alleged kidnapped victim was allegedly recovered by police in lying position at a lonely place where no person was seen. No witness relating to recovery of victim was examined by complainant. Known witnesses relating to recovery of victim and also relating to kidnapping were important, but they were not examined u/s 202 CrPC. Thus complainant side had deliberately not examined witnesses of facts relating to alleged offence. The offence in question u/s 164 IPC is triable exclusively by the court of sessions. Therefore before passing any summoning order in such matters, compliance of sub- section (2) of section 202 of CrPC is mandatory. This point was rightly emphasized by learned Addl. Sessions Judge in impugned judgment.
6.In "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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."
7.The passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind. For passing such orders all mandatory legal and procedural requirements has to be fulfilled. Since the same was not done in present matter by the Magistrate at the time of passing of the summoning order, who ignored mandatory provisions of section 202(2) CrPC and not called upon the complainant to produce his all witnesses and examine them on oath, therefore first revisional Court had not erred in passing the impugned order by which Magistrate was directed to follow the provisions of section 202 (2) CrPC and proceed in accordance with law.
8. So no illegality, irregularity or impropriety appears to have been committed by learned Addl. Sessions Judge when it had allowed the revision against the summoning order and gave directions to follow legal procedure. Therefore there is no justification for interference in impugned order. Revision, accordingly, fails and is hereby dismissed.
Order Date:-10.07.2015
SR
