Allahabad High Court
Smt Phoolmala vs State Of U.P. And Another on 2 December, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- APPLICATION U/S 482 No. - 23346 of 2022
Applicant :- Smt Phoolmala
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sanjay Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. This Court has passed the following orders on 27.09.2022:-
"1. I find substance in the submission advanced by Shri Sanjay Mishra, learned counsel for the applicant that learned Magistrate has not made out opinion that there are material to proceed against the applicant so much as that prima faice, not a single ingredient of Section 406 I.P.C. i.e. criminal breach of trust at present i.e. neither there was any entrustment nor any dominion in favour of the applicant by the complainant.
2. Issue notice to opposite party No.2 returnable at an early date.
3. Steps be taken within a week.
4. Put up as fresh on the date fixed in the notice in accordance with methodology adopted by the Registry.
5. There shall be stay of further proceedings of Complaint Case No.150 of 2020, (Praval Pratap Vs. Surendra) as well as impugned summoning order dated 28.02.2020 for a period of 3 weeks only."
2. Office report dated 03.11.2022 indicates that notice has been served upon the opposite party no. 2 on 20.10.2022, however, the opposite party no. 2 in person or through his counsel is not present.
3. In order to consider the submissions referred above, I have carefully perused the impugned order. For reference the relevant part of the order is mentioned hereinafter:-
"???????? ?????? ?????? ?? ???? ???????? 03.01.2020 ?????? ?????? ??? ???? ???? ??? ??? ????-200 ??. ???. ?????? ??? ??????? ????? ?????? ??? ?? ???????? ????? ??? ??? ????? ???? ???? ??? ??????? ?????? ???????? ?? ??? ???????? ???? ?? ??? ???? ??? ???? -202 ??. ???.?????? ??? ???? ?????? ???? ? ????????? ???? ?? ???????? ????? ??? ????????? ?? ?? ??????? ?????? ???????? ?? ??? ???????? ???? ?? ??? ???? ???
?????? ?? ?????, ?????? ? ????????? ?? ?????? ?? ??????? ??? ????? ??????? ??????? ??????? ?? ?????? ????-406 ????????? ? ????? ????? ???? ???? ?????? ???? ??? ??????? ????????? ?? ??????? ??? ?????? ??????? ???????? ???? ???? ??? ??, ????? ?? ???? ???? ??? ??? ????? ????????? ????????? ???? ??? ??? ??????? ???????, ????-406 ????????? ??? ?????? ???? ??? ???? ???? ????? ???"
4. The Supreme Court in the case of Lalankumar Singh and Others Vs. State of Maharashtra reported in 2022 SCC OnLine SC 1383 has held that ".......The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons...."
5. The above referred operative part of the impugned order does not reflect even in brief the opinion that there are sufficient ground to proceed against the applicant for an offence under Section 406 I.P.C. against the applicant as well as the opinion that there are no sufficient ground to proceed against one Surendra. Therefore, the impugned order dated 28.02.2020 is hereby set aside. However, the matter is remanded back for fresh consideration before the Court concerned, who will pass appropriate order in terms of the judgment passed in the case of Lalankumar Singh (Supra) within a period of three weeks from today under Section 203 or 204 Cr.P.C as the case may be.
Order Date :- 2.12.2022
Shafique
(S. No. 23/280 fresh cases)
