Allahabad High Court
Nikhil Kumar And 3 Others vs State Of U.P. . And Another on 17 March, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 8032 of 2023
Applicant :- Nikhil Kumar And 3 Others
Opposite Party :- State Of U.P. . And Another
Counsel for Applicant :- Keshav Mani Tripathi,Keshav Mani Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Keshav Mani Tripathi, learned counsel for the applicants as well as learned AGA and perused the record.
By means of the present application, the applicants have prayed to quash the entire proceeding of Complaint Case No. 3668 of 2022 (Anamika Shishodiya Vs. Nikhil Kuma and Others), under Section 406 IPC, P.S. Site-5, Disrict Gautam Budh Nagar including summoning order dated 16-08-2022 passed by Civil Judge (J.D.)/F.T.C.-2, Gautam Budh Nagar, pending in the Court of Civil Judge (J.D.)/F.T.C.-2, Gautambudh Nagar.
The contention of the learned counsel for the applicants are two folds; (i) It is contended by the learned counsel for the applicants that the applicants are the residents of Pune and Maharashtra whereas opposite party no.2 is resident of Gautam Budh Nagar and as per the provisions of Section 202 (1) Cr.P.C., which reads as under:-
" (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,--"
Under these circumstances where the parties are residents of different jurisdictions than in all fairness the Magistrate ought to have inquire into the matter by either himself or by sending some police officials and, therefore, without holding any proper inquiry the entire summoning order is vitiated on this ground.
(ii) It has been contended by the learned counsel for the applicants that the summoning order is lack of applicability of judicial mind by the concerned Magistrate and in this regard learned counsel for the applicant has relied upon a judgment of the Hon'ble Apex Court in the case of Lalan Kumar Singh & Others Vs. State of Maharashtra in Criminal Appeal No. 1757 of 2022 [arising out of SLP (Crl.) No. 8882 of 2015] and in para no. 28, the Hon'ble Apex Court has held that :-
"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 Investigation , 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.?
I have gone through the aforesaid judgment and I am of the considered opinion that the present summoning order is well short of the standard set up Hon'ble Apex Court. Therefore, I have got no hesitation in quashing the impugned summoning order dated 16-08-2022 passed by the learned Civil Judge (J.D.)/F.T.C.-2, Gautam Budh Nagar and remanded the matter back for fresh consideration before concerned Magistrate, who would pass fresh order in the light of the observations made above.
With this observation, the present 482 application stands dispose of.
Order Date :- 17.3.2023
pks
