Muhammad vs State Of U.P. And Another
2016 Latest Caselaw 4729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 48
 
Case :- APPLICATION U/S 482 No. - 23239 of 2016
 
Applicant :- 		Muhammad
 
Opposite Party :- 	State Of U.P. And Another
 
Counsel for Applicant :- 		Amit Kumar Srivastava
 
Counsel for Opposite Party :- 	G.A.
 

 
Hon'ble Pramod Kumar Srivastava, J.

1. This application under section 482 Cr.P.C. has been moved for quashing the proceeding of Complaint Case No. 596 of 2015, Akbar Ali Vs. Adil and others, police station Mubarakpur, District Azamgarh and the summoning order dated 27.6.2016 of cognizance passed in it by Judicial Magistrate, Court No. 21, Azamgarh for offences under sections 323 and 504 IPC against four accused including present applicant.

2. The complaint case no. 3029 of 2014 (New No. 596 of 2015) was filed by present opposite party no. 2 Akbar Ali against four persons. In alleged act proposed accused committed offence on 31.7.2014 at about 8:00 a.m. when accused persons have allegedly trespassed the house of complainant, hurled abuses, threatened and caused injuries by fist, kicks, clubs and sticks.

3. Complainant had examined himself under section 200 Cr.P.C. and two witnesses under section 202 Cr.P.C, on the basis of which the trial court had passed summoning order dated 27.6.2016 by which all the four accused named on complaint were summoned for offence under section323, 504 IPC. The proceedings of said complaint case alongwith said order of cognizance is under challenge in present proceeding.

4. Learned counsel for the applicant contended that impugned order of cognizance had been passed after concealment of pertinent facts in mala fide way, in cluding the status of accused no.-1 of being judicial officer. He further submitted that impugned order of cognizance is non-speaking and had been passed without application of mind, so proceeding of case on basis of such order is liable to be quashed. He contended that from concealment of relevant facts deliberately directions of Apex Court cannot be complied. Had these facts been in knowledge of trial court, there was no possibility of passing of such order.

5. These contentions were opposed by learned AGA who submitted that although impugne d summoning order is non-speaking and cryptic but on merits there is no error in it.

6. In ruling "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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

7. In "Paul George vs. State, 2002 Cri.L.J. 996" Hon'ble Supreme Court held :-

"We feel that whatever be the outcome of the pleas raised by the appellant on merit, the order disposing of the matter must indicate application of mind to the case and some reasons be assigned for negating or accepting such pleas.- - - - - It is true that it may depend upon the nature of the matter which is being dealt with by the Court and the nature of the jurisdiction being exercised as to in what manner the reasons may be recorded e.g. in an order of affirmance detailed reasons or discussion may not be necessary but some brief indication by the application of mind may be traceable to affirm an order would certainly be required. Mere ritual of repeating the words or language used in the provisions, saying that no illegality, impropriety or jurisdictional error is found in the judgment under challenge without even a whisper of the merits of the matter or nature of pleas raised does not meet the requirement of decision of a case judicially."

8. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 the Apex Court had held :

"Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed."

9. It is settled principle that while summoning an accused, the court has to see prima facie evidence. The ''prima facie evidence' means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The enquiry u/s 202 CrPC is limited only to ascertain of truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not.

10. As held by the Courts as above, 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. In light of this legal position I have gone through the impugned order. A perusal of this order indicates that after noting the names of witnesses Magistrate mentioned that on basis of evidence the four accused persons should be summoned for offences u/ss 323, 504 IPC. Neither any discussion of evidence was made, nor was it considered as to which accused had allegedly committed what overt act or what words were uttered by accused for cognizance of offence u/s 504 IPC. The four accused persons of complaint were summoned for offences mentioned above. I doubt whether the learned Magistrate had actually read statements u/ss 200, 202 CrPC or the documents of the original file or not. No reason was mentioned in the impugned order as to what those evidences contain, and how they help the prosecution case. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law.  Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. Therefore it is liable to be quashed.

11. In Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520 the Apex Court had held as under :

"20. As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction u/s 482 of the Code."

12. For the reasons discussed above, the impugned summoning order of the court below is erroneous. Such order of cognizance and summoning without using judicial mind is unacceptable in law and liable to be quashed.

13. From verification it is found that accused no.-1 mentioned in complaint and summoned by trial court, is a judicial officer, who was posted on the date of incident at Sitapur as Additional District Judge, and he is still continuing in judicial service. The applicants no.-1 and 2 are cousin brothers of complainant. Admittedly, civil litigation for property is continuing between them and complainant. Therefore, this contention of applicant side is found acceptable that complainant had knowledge of accused no.-1 being a judicial officer, but he has deliberately concealed this fact in complaint as well as in his statement under section 200 CrPC. These facts were concealed by two witnesses examined under section 202 CrPC also, who had previous acquaintance with aforesaid accused persons.

14. In Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406 Hon'ble Apex Court had held:

"55. The facts of the instant case demonstrate that a presiding officer of a court may be arrested and humiliated on flimsy and manufactured charges which could affect the administration of justice. In order to avoid any such situation in future, we consider it necessary to lay down guidelines which should be followed in the case of arrest and detention of a Judicial Officer. No person whatever his rank, or designation may be, is above law and he must face the penal consequences of infraction of criminal law. A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think that the following guidelines should be followed:

(A) If a Judicial Officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.

(B) If facts and circumstances necessitate the immediate arrest of a Judicial Officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District and Sessions Judge of the concerned district, if available.

(E) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisers and Judicial Officers, including the District and Sessions Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available.

(G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be overpowered and handcuffed. In such case, immediate report shall be made to the District and Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the police officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/or damages as may be summarily determined by the High Court.

56. The above guidelines are not exhaustive but these are minimum safeguards which must be observed in case of arrest of a Judicial Officer. These guidelines should be implemented by the State Government as well as by the High Courts. We, accordingly, direct that a copy of the guidelines shall be forwarded to the Chief Secretaries of all the State Governments and to all the High Courts with a direction that the same may be brought to the notice of the concerned officers for compliance."

15. In High Court of Judicature of Bombay v. Shirishkumar Rangrao Patil, (1997) 6 SCC 339 Hon'ble Apex Court had held:

"At the same time the High Court is the protector of the subordinate judiciary. Often some members of the Bar, in particular, in Muffasil Courts, attempt to take undue advantage of their long standing at the Bar and attempt to abuse their standing by bringing or attempting to bring about diverse forms of pressures and pinpricks on junior judicial officers or stubborn and stern and unbendable officers. If they remain unsuccessful, to achieve their nefarious purpose, some members of the Bar indulge in mud-slinging without any base, by sending repeated anonymous letters against the judicial officers questioning their performance/ capacity/ integrity. The High Court should, therefore, take care of the judicial officers and protect them from such unseeming attempts or pressures so as to maintain their morale and independence and support the honest and upright officers."

16. No criminal proceeding can be initiated against any judicial officer without obtaining prior sanction from the High Court even to the allegations relate to acts which are not done in discharge of his official duty. In present matter from perusal of record, it is found that neither the factum of accused no.-1 being a judicial officer was informed to court below nor any permission for starting criminal proceeding and prosecution was obtained from High Court. On the contrary the most relevant fact about the judicial officer's involvement was deliberately concealed, due to which directions of Hon'ble Apex Court, as above, could not be complied. This court is under obligation to take care of and protect its subordinate judicial officers from nefarious activities of persons acting malafidely due to enmity. Therefore in absence of such permission/ sanction from High Court, the proceeding of complaint case under challenge is liable to be quashed.

17. In view of above, it is found that at one hand the impugned order of cognizance and summoning is legally erroneous and on the other hand it is found that complaint case has been filed after deliberately suppressing relevant facts and without previous sanction of High Court such prosecution cannot be carried out. In such very special circumstances of the matter, in view of above, there is no propriety of issuing notice to opposite parties. Considering facts and circumstances, it appears that the continuation of criminal proceeding in this case would tantamount to abuse of process of law. Therefore, by exercising inherent jurisdiction of this Court and for preventing abuse of process of Court, this application u/s 482 CrPC is allowed. The proceeding of Complaint Case No. 596 of 2015 (Akbar Ali Vs. Adil & others) under section 323, 504 IPC, police station Mubarakpur, District Azmagarh pending in the Court of Judicial Magistrate, Court No. 21, Azmagarh are hereby quashed.

18. Let a copy of this order was sent to the trial court concerned, through the District and Sessions Judge, immediately.

Order Date :- 2.8.2016

SKS