Allahabad High Court
Ramveer And 8 Others vs State Of U.P. And Another on 11 August, 2016
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 48
Case :- APPLICATION U/S 482 No. - 23905 of 2016
Applicant :- Ramveer And 8 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Anuj Kumar Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Pramod Kumar Srivastava, J.
Heard learned counsel for the applicants, Sri K.D. Tiwary, learned counsel for OP No.-2, learned AGA and perused the records.
Complaint case no. 566/2016 (Govind Vs. Ramveer and 8 others) was filed with averment that complainant's brother-in-law Narottam trespassed in house of complainant with other co-accused and used criminal force, caused injuries and uttered foul words.
Complainant's real sister is married to Narottam, one of the applicant, and it is alleged that when he approached his wife in her parental home, altercation arose and incident complained of had happened. After adducing evidences under sections 200 & 202 CrPC, summoning order dated 20.7.2016 was passed by trial court.
Learned counsel for the applicants contended that summoning order under challenge is passed without application of mind and without considering the facts and circumstances of the matter. He contended that if applicant Narottam had visited his wife, then it cannot be treated as house trespass.
These contentions were refuted by learned counsel for OP No. 2, who submitted that use of criminal force is itself proof of criminal trespass and trial court had committed no error in passing impugned order.
In "1998 UPCrR 118; M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others" Hon'ble Supreme Court had held as under :-
"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."
In "2002 Cri.L.J. 996; Paul George vs. State" Hon'ble Apex Court had held as under:-
"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."
No doubt the enquiry conducted under section 202 CrPC is not required to be detailed enquiry or scrutiny of evidence to that extent which is required for the purposes of the trial or conviction, but at the same time, the Court must apply its mind while passing order for the issue of summonses under section 204(1) of the Code of Criminal Procedure. Court should remain very careful in summoning the accused persons in future at least in cases where the accused persons are resident of far off places. The Court is, no doubt, bound to consider the contents of the complaint and the preliminary evidence, but it is not essential requirement of S. 204, Criminal P.C. to give detailed reasons for issuing process to the accused. The only essential ingredient is that the order must exhibit that the Magistrate had applied his mind before passing the order.
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.
A perusal of impugned order indicates that learned Magistrate had written nothing concerning facts of the case in hand. After noting the names of witnesses Magistrate mentioned that there is sufficient prima facie evidence against accused persons for summoning them u/ss 452, 323, 504, 354-A, 506 IPC. Neither any discussion of evidence was made, nor was it considered as to which accused had allegedly committed what overt act. The accused persons of complaint were summoned for offences mentioned in that application. 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 documents 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.
Accordingly, this application is allowed and the order dated 20.7.2016 passed by Judicial Magistrate, Court No.-1, Sambhal in complaint case no. 566/2016 (Govind Vs. Ramveer and 8 others), under sections 452, 323, 504, 354-A, 506 IPC, P.S. Hayat Nagar, District Sambhal is hereby quashed. The matter is remanded to trial court with direction that after affording opportunity, the trial court shall pass fresh orders in accordance with law.
The copy of this order be communicated to lower court.
Order Date :- 11.8.2016
SR
