Allahabad High Court
Manish Gupta And Others vs State Of U.P. Thru. Prin. Secy. ... on 20 February, 2023
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 14
Case :- APPLICATION U/S 482 No. - 711 of 2023
Applicant :- Manish Gupta And Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lko. And Another
Counsel for Applicant :- Raghavendra Pratap Singh
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
1. Mr. Himanshu Trigunait, Advocate has filed Vakalatnama on behalf of the opposite party no. 2 today in Court is taken on record.
2. Heard learned counsel for the applicants, learned A.G.A. for the State, Mr. Himanshu Trigunait, learned counsel for opposite party no. 2 and perused the record.
3. The present application under Section 482 Cr.P.C. has been filed by the applicants with the following prayer:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside Complaint Case No. 86493 of 2022, under Sections 420, 504 and 506 IPC, Police Station Chowk, District Lucknow pending in court of learned Additional Chief Judicial Magistrate-V, Lucknow as well as summoning order dated 5.12.2022 passed by learned Additional Chief Judicial Magistrate, Court No. 29 Lucknow in the aforesaid case."
4. Learned counsel for the applicants submitted that opposite party no. 2 moved an application under Section 156 (3) Cr.P.C. on 11.8.2022, which was treated as complaint case. Thereafter on the basis of statements of opposite party no. 2 and witnesses recorded under Sections 200 Cr.P.C. and 202 Cr.P.C. respectively, the trial court without applying its judicious mind wrongly summoned the applicants in a very mechanical manner. The impugned summoning order dated 5.12.2022 reads as under:-
U;k;ky; vij eq[; U;kf;d eft-
d{k la[;k&29] y[kuÅA
izdh.kZ okn la[;k&[email protected]
v'kksd dqekj lksuh cuke euh"k xqIrk vkfn
fnukad&05&12&22
i=koyh vkns'kkFkZ is'k gq;hA ifjoknh ds fo}ku vf/koDrk dks [email protected] ij lquk x;k ifjoknh dh vksj ls ifjokni= izLrqr dj foi{kh dks ryc dj dk;Zokgh djus dh ;kpuk dh x;hA
ifjoknh us Lo;a dk c;ku varxZr /kkjk 200 n-a la- iz- o 202 n-a la- iz- esa mlds }kjk lat; jLrksxh ih- McY;w-&1 dk lk{; izLrqr djk;k x;k gSA
lquk rFkk i=koyh dk lE;d ifj'khyu fd;kA
i=koyh ds ifj'khyu rFkk ifjokni= esa fd, x, vfHkdFkuksa rFkk ifjoknh ds c;ku /kkjh 200 na- iz- la- o mlds }kjk ijhf{kr lk{kh ds c;ku /kkjk 202 na- iz- la- rFkk i=koyh ij miyC/k izys[kksa ds voyksdu ls izFke n`"V;k foi{khx.k }kjk /kkjk 420] 504] 506 Hkk-na-fo- dk vijk/k fd;k tkuk izFke n`"V;k n`f"Vxr gksrk gSAekuuh; mPp U;k;ky; bykgkckn }kjk viuh lEekfur fof/k O;oLFkk ykypUnz cuke pju thr dkSj 1998&37 ,0 lh0 lh0 fgUnh 8 में माननीय न्यायालय द्वारा यह अभिमत व्यक्त किया गया है कि न्यायालय का यह दायित्व है कि वह किसी भी मामले की व्यवहारिकता व सत्यता की जांच न्यायिक तुला पर करे तथा परिवाद का तर्क की कसौटी पर खरा उतरना आवश्यक है।
अतः न्यायालय के निष्कर्ष में प्रथम दृष्टया प्रस्तावित अभियुक्तगण अतुल कनौजिया उर्फ सीरम तथा श्रीमती मंजू कनौजिया को प्रथम दृष्टया धारा 504] 420] 506 भा-द-वि- में विचारण हेतु तलब किये जाने का आधार पर्याप्त है।
आदेश
विपक्षी मनीष गुप्ता ऋषि शुक्ला पिंकू ठाकुर अनुज सोनी तथा अंकुश सोनी को प्रथम दृष्टया धारा 420] 504] 506 भा-द-वि- में विचारण हेतु बतौर अभियुक्त तलब किया जाता है। पत्रावली वास्ते हाजिरी दिनाक 21-1-23 को पेश हो । अभियुक्तगण को सम्मन नियत तिथि के लिए जारी हो। परिवादी पैरवी नियमानुसार करें।
'kkUruq R;kxh
vij eq[; U;kf;d eft-
d{k la[;k&29] y[kuÅ
5. It is further submitted that in Para No. 5 of the summoning order dated 5.12.2022, it is mentioned that prima facie, there appears to be sufficient ground to summon accused Atul Kannojia alias Saurabh and Smt. Manju Kannojia and in the sixth paragraph it has been mentioned that Manish Gupta, Rishi Shukla, Pinku Thakur, Anuj Soni and Ankush Soni are summoned to be present on 21.1.2023, which shows that the learned Additional Chief Judicial Magistrate, Court No. 29, Lucknow passed the order without application of judicial mind and in a very mechanical manner without dealing the evidence of complainant and witnesses on behalf of the complainant under Section 202 Cr.P.C. Thus, the impugned summoning order is cryptic and non-speaking order and the same is liable to be set aside.
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.
(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 25.01.2023 this Court passed the following orders:-
"This application under Section 482 Cr.P.C. has been filed to quash the complaint case no. 86493 of 2022 under Sections 420, 504, 506 I.P.C., Police Station- Chowk, District- Lucknow pending in the court of ACJM, Vth, Lucknow, District- Lucknow and quash the summoning order dated 5.12.2022.
Learned counsel for the applicant pointed out that from the contents of the impugned summoning order dated 5.12.2022, it appears that in the body of the judgment of summoning order learned Sri Shantanu Tyagi, learned ACJM, Court No. 29, Lucknow on the basis of sufficient ground arrived at a conclusion that prima facie offence is made out against Atul Kanaujia @ Saurabh and Smt. Manju Kanaujia under Section 420, 504, 506 I.P.C. but in concluding portion i.e. in the portion of order, learned ACJM, Court No. 29, Lucknow, has summoned Manish Gupta, Rishi Shukla, Pinku Thakur, Anuj Soni and Ankush Soni under Section 420, 504, 506 I.P.C. Thus, it is reflected that learned ACJM, Court No. 29, Lucknow has passed the impugned summoning order without applying of judicial mind.
Shantanu Tyagi, ACJM, Court No. 29, Lucknow is directed to appear in person at 4:00 p.m. on 3.2.2023 along with his explanation.
List this case on 3.2.2023.
Ensure compliance of order of this Court through Senior Registrar of this Court.
Till the next date of listing, further proceedings of complaint case no. 86493 of 2022 and impugned summoning order dated 5.12.2022 shall be kept in abeyance."
9. In compliance thereof, Mr. Shantanu Tyagi, learned Additional Chief Judicial Magistrate, Lucknow is present in person before this Court. He tendered unconditional apology.
10. In view of the above facts and circumstances, the impugned summoning order 5.12.2022 is hereby quashed. Learned Additional Chief Judicial Magistrate, Court No. 29, Lucknow, 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 summoning orders.
11. The Senior Registrar of this Court is directed to communicate this order to the trial court through District Judge, Lucknow for necessary compliance.
12. With these observations/ directions, the application under Section 482 Cr.P.C. is allowed.
Order Date :- 20.2.2023
Virendra
