Allahabad High Court
Dinesh @ Raghvendra Singh And ... vs State Of U.P. Thru. Prin. Secy. ... on 1 February, 2023
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 14
Case :- APPLICATION U/S 482 No. - 949 of 2023
Applicant :- Dinesh @ Raghvendra Singh And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
Counsel for Applicant :- Ram Bux Rawat,Archana Misra
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the applicants, learned A.G.A. and perused the record.
2. In view of order proposed to be passed, issuance of notice to opposite party no.2 is dispensed with.
3. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned summoning order dated 26.8.2022 passed by the Judicial Magistrate, Lakhimpur Kheri in Complaint Case No. 454 of 2022 under Section 354,504,506 IPC, Police Station- Phardhan, District- Lakhimpur Kheri.
4. Learned counsel for applicants has submitted that the opposite party no.2 moved a false and frivolous application u/s 156(3) CrPC against the applicants and the said application was treated as complaint case. Thereafter, on the basis of statements of the opposite party no.2 and witnesses recorded u/s 200 & 202 CrPC respectively, the trial court without applying judicial mind wrongly summoned the applicants in a very mechanical manner. The impugned summoning order dated 26.8.2022 reads as under:
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fnukad&26-08-2022
okn i=koyh izLrqr gqbZA ifjokfnuh e; fo}ku vf/koDrk mifLFkr ifjokfnuh ,oa mlds fo}ku vf/koDrk dks rych cgl ij lquk tk pqdk gSA
ifjokfnuh }kjk izLrqr dFku la{ksi esa bl izdkj gS fd ?kVuk fnukad 16-11-2021 dks le; djhc 09 cts] tc ifjokfnuh vius [ksr dh xqM+kbZ dj jgh Fkh rHkh foi{khx.k fnus'k iq= ân; ujk;u rFkk nsosUnz izrki iq= JhdkUr us ifjokfnuh dks vdsyh ns[kdj idM+ fy;k rFkk fyiV&fNiV dj v'yhy gjdrs djus yxsA ifjokfnuh ds 'kksj djus ij foi{khx.k Hkn~nh&Hkn~nh xkfy;ka nsrs gq, dgh f'kdk;r djus ij tku ls ekj Mkyus dh /kedh nsrs gq, Hkkx x;sA 'kksj dh vkokt ij xkao ds dqN ykxksa ds vk tkus ij mDr foi{khx.k dks Hkkxrs gq, ns[kk x;kA ifjokfnuh us ?kVuk dh lwpuk iqfyl o vU; mPpkf/kdkfj;ksa nh ijUrq dksbZ dk;Zokgh ugh gqbZA vr% Jheku th ls fuosnu gS fd foi{khx.k dks ryc dj nf.Mr djus dh d`ik djsaA
ifjokfnuh }kjk ekSf[kd lk{; ds :i esa Lo;a dks vUrxZr /kkjk 200 na0iz0la0 ,oa lk{kh ih0MCyw1 jkeflag rFkk lk{kh ih0MCyw02 'kdyh ds c;ku vUrxZr /kkjk 202 na0iz0la0 esa vafdr fd;s x;sa
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ifjokfnuh us vius /kkjk 200 na0iz0la0 ds dFkuksa rFkk vius ifjokn i= esa fo'ks"k :i ls dFku fd;k gS fd foi{khx.k fnus'k rFkk nsosUnz izrki us ifjokfnuh dh L=hyTTkk Hkax djus ds vk'k; ls ml ij vkijkf/kd cy iz;ksx djrs gq, tku eky dh /kedh nh rFkk Hkn~nh&Hkn~nh xkfy;ksa dk iz;ksx fd;kA bUgha dFkuksa dk leFkZu ifjokfnuh }kjk izLrqr lk{kh ih0MCyw01 'kelqn~nhu rFkk ih0MCyw02 js'kek }kjk fd;k x;k gSA
vLrq mijksDr rF;ksa ,oa ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, foi{khx.k fnus'k rFkk nsosUnz izrki nQk 354] 504] 506 Hkk0na0la0 ds ekeys esa izFke n`"V;k nks"kh izrhr gksrs gSA
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ifjokfnuh leLr lk{khx.kksa dh lwph izLrqr djrs gq, /kkjk&204 na0iz0la0 dk vuqikyu lqfuf'pr djsaA i=koyh okLrq gkftjh eqfYteku fnukad 28-09-2022 dks is'k gksA
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5. It is further submitted that in Para No. 3 of the summoning order dated 26.8.2022, Ram Singh as PW-1 and Shakli as PW-2 are mentioned. But in Para No. 5 of the said summoning order, Shamsuddin as PW-1 and Reshma as PW-2 are mentioned, which shows that the magistrate passed the order without application of judicial mind and in a very mechanical manner. Thus, the impugned summoning order is cryptic and non-speaking order and the same is liable to be quashed.
6. Learned A.G.A. opposed the prayer made by the learned counsel for the applicants and submitted that it is the discretionary power of the trial court to pass the summoning order.
7. In a judgment of this court in the case of Mahboob and others Vs. State of U.P. and another 2017 (98) ACC 593, it was held as under:-
"(6) In the case of Sonu Gupta versus Deepak Gupta (2015) Vol.3 SCC 424, it was held by the Hon'ble Apex Court that :-
"At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. (Para 8) "
(7) In a recent judgment delivered by Hon'ble the Apex Court on 14.12.2016 in Criminal Appeal No.1225 of 2016 (arising out of SLP(Crl.) No.9318 of 2012) Abhijit Pawar vs. Hemant Madhukar Nimbalakar & Anr. It was held that the admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an inquiry or investigation before issuing the process. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure(Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words that ''and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to ward off false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provisions casts an obligation on the Magistrate to conduct inquiry or direct investigation before issuing the process, so that false complaints are filtered and rejected.
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(9) In Mehmood UI Rehmand vs. Khazir Mohammad Tund (2016) 1 SCC (Cri) 124; it was held as under :
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.
22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment." Emphasis added. "
8. On perusal of the impugned summoning order dated 26.8.2022, it reveals that in Para No. 3, Ram Singh as PW-1 and Shakli as PW-2 are mentioned. But in Para No. 5 of the said summoning order, Shamsuddin as PW-1 and Reshma as PW-2 are mentioned, which shows that the magistrate passed the order without application of judicial mind. The summoning order is manifestly cryptic and misconceived.
9. In view of the above facts and circumstances, the impugned summoning order 26.8.2022 is hereby quashed. Learned Magistrate is, hereby, directed to pass a fresh summoning order within four weeks from the date of production of a certified copy of this order. Moreover, it is warned to him that be careful in future while passing such type of orders.
10. The Senior Registrar of this Court is directed to communicate this order to the trial court through District Judge, Lakhimpur Kheri for necessary compliance.
11. With these observations/ directions, the application under Section 482 Cr.P.C. is allowed.
Order Date :- 1.2.2023
Shravan
