Ashok Nigam vs State Of U.P. And Another
2021 Latest Caselaw 11476 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 30
 
Case :- APPLICATION U/S 482 No. - 35914 of 2008
 

 
Applicant :- Ashok Nigam
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Manas Bhargava
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Brij Raj Singh,J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. By the present application under Section 482 Cr.P.C. the applicant has invoked the inherent jurisdiction of this Court with a prayer to allow this application and quash the entire proceedings of complaint case No. 5120 of 2007 (Smt. Asha Nigam Vs. Ashok Kumar Nigam and others) under Section 406, 323, 504, 506 I.P.C., P.S.- Kakadeo, Kanpur pending in the court of M.M. - Xth, Kanpur Nagar and also quash its consequential summoning order dated 02.07.2008.

3. In this case, the complaint was filed by the opposite party No.2 and the same has been entertained after recording the statement under Section 200 Cr.P.C. The Court below has summoned the applicant vide order dated 02.07.2008.

4. The scheme of Chapter-XV of Cr.P.C. is comprehensive and in detail. The object behind the provisions of Section 202 Cr.P.C. is to scrutinize carefully the averments in the complaint with a view to prevent a person named therein. A person should not be called on frivolous complaint. Summoning of an accused in a criminal case is a serious matter which is to be examined carefully on the face value of the allegations, the evidences in support thereof Section 200 and 202 Cr.P.C. is quoted below :

"200. Examination of complaint.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 :

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,-

(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant to the proper Court.

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, 1 [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] 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 Sessions; 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.

(3) If an investigation under sub-section (1) is made by a person not being a police office, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."

5. Section 203 Cr.P.C. is envisaged for dismissal of the complaint. In case Magistrate after considering the statements on oath of the complaint and witnesses and the result of the enquiry under Section 202, if has formed the opinion for proceeding he can dismiss the complaint by recording the reasons briefly. Section 204 Cr.P.C. is the provision where Magistrate has to form the opinion for taking cognizance.

6. There is no specific mode or manner of enquiry provided under Section 202 of the Code. Under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code examination of the complainant is necessary with option of examining the witnesses present if any. The Magistrate has to decide whether or not there is sufficient ground for proceeding against the accused to proceed in an enquiry envisaged under Section 202 of the Code.

7. Learned counsel for the applicant submits that the learned Magistrate has passed the order without application of mind and he has not discussed the evidences on record as to how he is satisfied to summon the applicant. He further submits that after recording the statement of opposite party No.2, he has passed the order without applying his judicial mind. He has placed the reliance of order passed by Hon'ble Apex Court in the case of Krishan Lal Chawla Vs. State of U.P. and Another. The relevant para nos.13 & 14 of the aforesaid judgment is quoted here-in-under:-

"13. The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens' life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate - and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in Pespi Foods Ltd. Vs. Special Judicial Magistrate,(1998) 5 SCC 749:

"28. 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 of the accused. The Magistrate has to carefully scrutinise 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." (emphasis supplied) This Court, thus, clearly emphasised that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made.

14. Similarly, the power conferred on the Magistrate under Section 202, CrPC to postpone the issue of process pursuant to a private complaint also provides an important avenue for filtering out of frivolous complaints that must be fully exercised. A four Judge Bench of this Court has eloquently expounded on this in Chandra Deo Singh v. Prokash Chandra Bose & Anr., AIR 1963 SC 1430:

"7. ...No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant..." (emphasis supplied) Thus, it is clear that, on receipt of a private complaint, the Magistrate must first, scrutinise it to examine if the allegations made in the private complaint, inter alia, smack of an instance of frivolous litigation; and second, examine and elicit the material that supports the case of the complainant."

8. He has also placed the reliance of the order passed by co-ordinate Bench of this Court in Application U/S 482 No. - 11135 of 2020 (Hamid Ali Vs. State of U.P. and Another).

9. Reference may also be made to the judgement of this Court in the case of Hariram Verma and 4 Others Vs. State of U.P. and Anohter, reported in 2017 (99) ALL CC 104, wherein the following observations have been made in paragraphs 7 to 11:

"7. A perusal of this impugned summoning order indicates that learned Magistrate had noted in the impugned order the contents of complaint and evidences u/s 200 and 202 Cr.P.C., but had neither any discussion of evidence was made, nor was it considered as to what overt act had allegedly been committed by accused. This contention of learned counsel for the applicants cannot be ruled out that leaned counsel have noted the contents of complaint and statements without considering its probability or prima facie case, and whether he had actually considered statements u/s 200, 202 Cr.P.C. or the documents of the original. At stage of summoning, the Magistrate is not required to meticulously examine or evaluate the evidence. He is not required to record detailed reasons. A brief order which indicate the application of mind is all that is expected of him at the stage."

8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. 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."

9. 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."

10. 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."

11. 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."

10. Prima facie the evidence means the evidences and statements in the summoning case has to be seen against the accused which are sufficient to constitute the offence. The enquiry under Section 202 Cr.P.C., is limited only to test the truth or falsehood of allegations made in the complaint. It is thus to be seen whether the material placed by the complainant prima facie makes out case for summoning the accused or not.

11. In the present case the Magistrate has not conducted any enquiry so as to satisfy himself that the allegation in the complaint constitute and offence. He has to further record his finding that statements recorded by him are sufficient to proceed. The ground for proceeding against the applicant is provided under Section 204 Cr.P.C. The Magistrate has not applied his mind and summons have been issued. It is needless to say that summoning in criminal case is a serious matter affecting the dignity, self-respect and image in the society. The criminal proceedings cannot be allowed for harassment.

12. I have gone through the judgments and perused the record. It is abundantly clear that learned Magistrate has not applied his judicial mind. He has simply said that he is satisfied on the basis of the statement recorded under Sections 200, 202 Cr.P.C. and therefore he summoned the accused. The Court has to record reasons while summoning the accused in complaint case. The Court cannot passed cryptic order without discussing the evidences and other circumstances. I am setting aside the order dated 02.07.2008 and remanding the matter to the concerned Court for passing afresh order.

13. It is open for learned counsel for the applicant to raise all the pleas available to him.

14. Learned counsel for the applicant will file certified copy of this order within a period of twenty days' from today thereafter, the concerned Court will take decision within a period of two months after affording opportunity of hearing to the parties concerned.

15. Needless to say that Court concerned shall pass afresh order in accordance with law.

16. The application is accordingly, disposed of.

Order Date :- 14.12.2021

Sachin/Faisal-