Allahabad High Court
Dr Manisha Gupta vs State Of U.P. And Another on 24 March, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 9893 of 2023
Applicant :- Dr Manisha Gupta
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Keshari Nath Tripathi,Mukhtar Alam
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Mukhtar Alam and Sri Keshari Nath Tripathi, learned counsel for the applicant as well as learned A.G.A.
By means of the present application, the prayer sought by the applicant is to quash the entire proceeding of complaint case no.4473 of 2021 under sectioins 420, 506 IPC, police station-Kotwali Nagar, District-Saharanpur as well as order dated 29.10.2021 and the consequential orders passed by Additional Chief Judicial Magistrate, Court No.1, Saharanpur.
Learned counsel for the applicant has drawn the attention of the Court to the summoning order and has tried to impress upon the Court with the following legal questions :-
(i) From the plain reading of the complaint case, applicant is the resident of Mohali, Punjab whereas opposite party no.2 is presently residing at Saharanpur, Uttar Pradesh and mandatory provision of Section 202(1) Cr.P.C. reads thus :-
Section 202(1) in The Code Of Criminal Procedure, 1973
"(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"
Therefore, no inquiry was ever conducted by the concerned Magistrate ignoring the aforesaid essential legal mandate of law and on this score, summoning order is bad in the eye of law. In the entire summoning order, there is, except the name of the applicant, has been incorporated in the summoning order, there is no whisper under section 200 and 202 Cr.P.C. of name of the applicant.
Under the circumstances, this is a million dollar question as to from where the name of the applicant was dropped among the array of accused persons. The impugned summoning order is devoid of any reasoning in the light of the judgment of Hon'ble the Apex Court in the case of Lallankumar Singh and Others Vs. State of Maharashtra, 2022 LiveLaw (SC) 833, paragraph no.28 of which is quoted hereinbelow :-
"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."
It is sine qua non that the Judicial Magistrate while passing the impugned summoning order must spell out his mental judicial reasoning for summoning of accused persons. This is not mechanical process as the ratio laid down by Hon'ble the Apex Court.
Hence, I find that the impugned summoning order is well short of standard set up by Hon'ble the Apex Court and therefore, I have got no hesitation to quash the summoning order dated 29.10.2021 at this stage and the matter is remanded back to the concerned court below with the direction to re-visit and re-consider the matter again and pass a fresh well reasoned and speaking order, which must be reflective of judicial application of mind and the prima facie satisfaction of the court concerned, keeping in view the law laid down by Hon'ble Apex Court within eight weeks from the date of production of certified copy of this order.
The instant 482 application is disposed of with above observations.
Order Date :- 24.3.2023
Sumit S
