Allahabad High Court
Navneet Kumar Chaturvedi And 2 ... vs State Of U.P. And Another on 4 April, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 10181 of 2023
Applicant :- Navneet Kumar Chaturvedi And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Arvind Prabodh Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Arvind Prabodh Dubey, learned counsel for the applicants and learned AGA for the State.
The order of summoning dated 28.09.2022 is under judicial scrutiny passed by Judicial Magistrate, Kushinagar at Padrauna while deciding the complaint case no. 9054 of 2022 under Sections 494, 323, 504, 506 IPC, P.S. Nebua Naurangiya, District Kushinagar.
Contention raised by the counsel that opposite party no.2 is resident of Sakin Narchochawa, Tola Dharampur, P.S. Nebua Naurangiya, District Kushinagar, where as the applicants are resident of village Bauliya Raja, Post Baulia Rana, P.S. Kotwali Sadar, Maharajganj, District Maharajganj. There are two different jurisdiction of the Magistrate and the concerned Magistrate ought to have conducted the due inquiry as contemplated under 202(1) Cr.P.C. which reads thus:-
"(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."
In addition to this, learned counsel for the applicants submits that the present 482 Cr.P.C. application do not contain any application of judicial mind by concerned Judicial Magistrate, Kushinagar while passing the summoning order, accept the narration of the fact that statement under Section 200/202 Cr.P.C. have been recorded.
Learned counsel for the applicant contended that in the entire summoning order there is not a whisper with regard to the application of judicial mind while issuing summoning order. Learned counsel for the applicant has relied upon the judgment of Hon'ble Apex Court in the case of Lallan Kumar Singh and others Vs. State of Maharashra reported in 2022 LiveLaw (SC) 833, paragraph 28 is quoted herein below:-
"28. 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. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation9, which reads thus:
"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate 9 (2015) 4 SCC 609 taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
Thus after taking the help of the aforesaid guidelines, I have got no hesitation that the order impugned is well short of standard set up by Hon'ble Apex Court while summoning and therefore this summoning order is hereby quashed and matter is remanded back to the concerned Magistrate to apply his judicial mind and pass fresh summoning order within a period of eight weeks from the date of production of certified copy of this order.
With this observation, the present 482 application is disposed of.
Order Date :- 4.4.2023
Abhishek Sri.
