Allahabad High Court
Afzal Sheikh And Another vs State Of U.P. And Another on 23 March, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 7662 of 2023
Applicant :- Afzal Sheikh And Another
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Mohammad Danish
Counsel for Opposite Party :- G.A.,Shashi Kant Pandey
Hon'ble Rahul Chaturvedi,J.
Heard Mohammad Danish, learned counsel for the applicants and Shri Shishi Kant Pandey, learned counsel for opposite party no.2 as well as learned A.G.A. for the State.
This 482 application is targeted against summoning order dated 07.05.2022 passed by the Additional Chief Judicial Magistrate, Court No.4, Moradabad as well as entire proceeding of complaint case no.916 of 2021 (Mohammad Waseem Vs. Afzal Sheikh and others), under Section 420 IPC, P.S. Katghar, District Moradabad, pending in the court of the Additional Chief Judicial Magistrate, Court No.4, Moradabad.
Learned counsel for the applicants has drawn attention of the Court to summoning order dated 7.5.2022 assailing the legality and validity on the following counts :
(i) There is no compliance of Section 202(1) of Cr.P.C. before passing the summoning order by the court concerned.
(ii) The court concerned has not applied judicial mind while summoning the applicants as contemplated by Hon'ble Apex Court in the case of Lallan Kumar Singh and others Vs. State of Maharashra reported in 2022 Live Law (SC) 833.
It is also contended by learned counsel for the applicants that the applicant no.2 is of Moradabad whereas applicant no.2 resides in Mumbai and in all fairness the learned Magistrate ought to have made inquiry himself or through any police officer with regard to aforesaid offence.
Per contra learned counsel for opposite party no.2 while rebutting the submissions advanced by learned counsel for the applicants, has defended that a duly inquiry has been made by the Magistrate before summoning the applicants as contemplated in Section 202 (1) of Cr.P.C.
I have heard rival submissions advanced at the Bar and perused the entire record of the case.
Before scrutinizing the contentions advanced by both the counsel, it is imperative to reproduce the provisions of Section 202(1) of Cr.P.C. herein below :
"202 (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."
From the aforesaid provisions of Section 202(1) of Cr.P.C. is clear that an inquiry into the case shall be made by the Magistrate himself or by a police officer for proceeding further on a complaint, but from the impugned summoning order it is evident that there is no inquiry as contemplated u/s 202(1) of Cr.P.C. and all of a sudden the Magistrate jumped into the conclusion and summon the applicants. 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. In this regard the Hon'ble Apex Court's decision in the case of Lallan Kumar Singh (supra) has made all the fogs clear in its paragraph 28, 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 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."
Thus after taking the help of the aforesaid guidelines laid down by Hon'ble Apex Court, I have got no hesitation that the order impugned is well short of standards set up by the Hon'ble Apex Court while summoning the accused, and therefore, impugned summoning order dated 07.05.2022 is hereby quashed. The matter is remanded back to the concerned Magistrate for deciding it afresh after applying his judicial mind by passing a suitable order in the light of above observations, 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 :- 23.3.2023
M. Kumar
