Allahabad High Court
Raju Tiwari @ Jai Prakash Tripathi ... vs State Of U.P. And Another on 27 March, 2023
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- APPLICATION U/S 482 No. - 10077 of 2023
Applicant :- Raju Tiwari @ Jai Prakash Tripathi And 3 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Gurfan Ali,Abad Ali Tyagi
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Gurfan Ali, learned counsel for the applicants and learned AGA for the State.
This 482 application is targeted against the summoning order dated 06.01.2022 passed by the Civil Judge(SD)F.T.C./ACJM, Mirzapur, as well as entire criminal proceeding in case no.1021 of 2021 (Neeraj Jaiswal vs. Raju Tiwari and others), under Sections 323, 427, 504, 506 IPC, Police Station Haliya, District-Mirzapur, pending in the court of Civil Judge (SD) F.T.C./ACJM, Mirzapur.
Learned counsel for the applicants contended that in the entire summoning order there is not a whisper with regard to the application of judicial mind while issuing summoning order. Learned counsel for the applicant has relied upon the judgment of Hon'ble Apex Court in the case of Lallan Kumar Singh and others Vs. State of Maharashra reported in 2022 Live Law (SC) 833, paragraph 28 is 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 Investigation9, 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 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."
In the light of the judgements referred to above, it is demonstrably clear that the impugned summoning order is cryptic and does not stand the test laid down by this Court.
Accordingly, the impugned summoning order dated order dated 06.01.2022 passed by the Civil Judge(SD)F.T.C./ACJM, Mirzapur, is hereby quashed and the matter is remanded back to the Civil Judge(SD)F.T.C./ACJM, Mirzapur with the direction to re-visit and re-consider the matter de-novo 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 as well as this Court in above-mentioned cases, within next eight weeks.
The instant 482 application is disposed of with above observation.
Order Date :- 27.3.2023
M. Kumar
