Rajveer Kumar Pandey @ Babbu ... vs State Of U.P. And Another
2023 Latest Caselaw 14949 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Neutral Citation No. - 2023:AHC:103393
 
Court No. - 81                                                                                                    Reserved
 
Case :- CRIMINAL APPEAL No. - 412 of 2023
 

 
Appellant :- Rajveer Kumar Pandey @ Babbu Pandey And 3 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Shad Khan,Ajad Singh
 
Counsel for Respondent :- G.A.,Sandeep Srivastava
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Anil Srivastava, learned Senior Advocate assisted by Shri Shad Khan, learned counsel for the appellants and Shri Sandeep Srivastava, learned counsel appearing for informant/ opposite party no.2 as well as learned Additional Government Advocate for the State and perused the record.

The instant appeal under Section 14-A (1) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been filed by the appellants, Rajeev Kumar Pandey @ Babbu Pandey, Manish Kumar Pandey @ Rupesh Kumar Pandey, Prabhat Kumar Pandey @ Chuttey Pandey and Vineet Kumar Pndey with the prayer to quash the summoning order dated 10.10.2022 passed by learned A.C.J. (J.D.) Court No.11, Allahabad as well as the entire proceeding of Complaint Case No. 73 of 2017 (Rajesh Kumar Vs. Rajeev Kumar and others), under Sections 323, 307, 504 and 506 IPC and 3(1) (10) SC/ST Act, 1989, Police Station Karchan, District Prayagraj.

Shri Anil Srivastava, learned Senior counsel while drawing the attention of this Court towards the impugned order of date 10.10.2022, submits that the impugned order has been passed by the trial court in most negligent manner, without adverting to the material/ evidence placed before it by the complainant in the form of his statement recorded under Section 200 Cr.P.C. as well as of his witnesses under Section 202 Cr.P.C. without discussing the probability of the commission of the alleged offences on the touch stone of probability.

Elaborating further it is submitted that an application under Section 156(3) Cr.P.C. was moved by the opposite party no2. before the Magistrate concerned and the same  was treated as complaint vide order dated 1.10.2015 and after recording the statement of the complainant/ opposite party no.2 Rajesh Kumar and his two witnesses, namely, P.W.1- Ram Prakash @ Ram Pravesh and P.W.2 Chhavinath under Section 200 and 202 Cr.P.C., by passing the order dated 28.2.2019 only accused Manish Kuamr Pandey @ Rupesh Kumar Pandey was summoned to face trial under Sections 323, 504, 506 IPC.  However, this order was challenged by the opposite party no.2 / complainant by filing a revision and vide order dated 12.3.2021 passed by the revisional court / Additional District and Sessions Judge Court No.1, Allahabad the order dated 28.2.2019 was set aside and the trial court was directed  to pass an order afresh after providing an opportunity of being heard to the parties.

It is next submitted that the Additional Chief Judicial Magistrate Court No.4, Allahabad keeping in view the order passed by the revisional court again passed an order dated 3.11.2021, whereby all the accused persons / appellants were summoned to face trial for committing offences under Sections 323, 504, 506 IPC and this order was again challenged by the complainant by filing a criminal revision  and vide order dated 9.6.2022 of the revisional court/ Sessions Judge, Allahabad the order dated 3.11.2021 was set aside and the Magistrate was directed to pass a fresh order keeping in view the observation made in the order of the revisional court of date 9.6.2022 and in compliance of the same the impugned order dated 10.10.2022 has been passed.

It is vehemently submitted that the allegation as levelled in the complaint as well as in the statement of the complainant and the prosecution witnesses recorded under Sections 200 and 202 Cr.P.C. are highly improbable and could not be believed on the touch stone of probability, more so when the parties are having inimical relations from before  the alleged incident and the revisional court by passing an order dated 9.6.2022 has exceeded its jurisdiction in  appreciating the evidence available on record which was an area earmarked for the trial court/ magistrate.

It is vehemently submitted that weakness of the case of the complainant may be assessed by the fact that both the witnesses of the complainant, namely, Ram Praksh @ Ram Pravesh and Chhabinath  have filed their affidavits before the trial court on 14.10.2022 and 19.9.2022 respectively, categorically stating therein that  they had never appeared before the trial court/ court of Magistrate for the purpose of recording their statements under Section 202 Cr.P.C.  and some other person has been presented  by complainant before the trial court using their identification documents and no incident as shown by the complainant had actually occurred.

It is also submitted that paternal uncle of the opposite party no.2 had sold their property  to one Ram Lal and the mother of the appellants had purchased  the said property from Ram Lal and a case no. 103/2013 under Section 229-B U.P. Z.A. & L.R.Act was field by opposite party no.2 in the court  of S.D.O. Karchana, Allahabad, however, the same was dismissed on 16.7.2018 against which an appeal was filed by opposite party no.2 before the Commissioner Prayagraj.  Thus the parties were/ are highly inimical towards each other and the  instant complaint is nothing but abuse of process of law as the opposite party no.2 failed to get any relief from the revenue court.

It is also submitted after filing of the affidavits of the witnesses of the complainant, the complainant/ opposite party no.2 has also initiated proceedings under Section  340 Cr.P.C. against the witnesses, namely, Ram Prakash @ Ram Pravesh  and Chhabinath  and the same is under consideration of the trial court.

It is vehemently submitted that statements given by the alleged witnesses of the complainant under Sections 202 Cr.P.C. has become doubtful by filing of affidavits  by them denying  giving of evidence by them as well as denying the prosecution story in totality and therefore the order whereby the appellants have been summoned to face trial of the offences under Section 307 IPC and 3(1) (10) of SC/ST Act wherein the appellants were not summoned in earlier summoning orders passed by the trial court, is illegal and is liable to be set aside.

Shri Sandeep Srivastava, learned counsel appearing for opposite party no 2., vehemently submits that the trial court has not committed any illegality or to say any irregularity in summoning the appellants to face trial for committing offences under Sections 323, 504, 506, 307 IPC and 3(1) (10) of SC/ST Act  as the application moved under Section 156(3) Cr.P.C. by the complainant, treated as complaint by the trial court and the statements of the complainant recorded under Section 200 Cr.P.C. and of his witnesses recorded under Section 202 Cr.P.C.  are attracting the commission of these offences and at the stage of summoning, only prima facie case is required to be seen  and thus by passing earlier orders of summoning  which were challenged by the opposite party no.2 by filing revisions the trial court had  not considered the allegations pertaining to committing offences under Section 307 IPC and 3(1) (10) of the SC/ST Act while the said offences were clearly emerging and these orders were rightly set aside by the revisional court.

It is further submitted that the trial court while passing the impugned order  has considered the affidavit filed by one of the witness  of the complainant, namely, Chhabinath and filing of the affidavits by witnesses of the complainant denying the prosecution story shows that the witness has been  won over by the appellants and thus proceeding under Section 340 Cr.P.C. has been initiated by the opposite party no.2 against them and the duty of the Magistrate at the time of summoning was  to confine himself to the material which was placed before him at the time of passing of the earlier orders and thus the filing of the affidavits by the witnesses, subsequently has not been rightly taken into cognizance by the Magistrate as the issue is also under active consideration of the trial court in the proceedings initiated by the opposite party no.2 under Section 340 of the Cr.P.C.  Thus there is no illegality or to say any irregularity in the impugned order passed by the trial court.

Learned AGA has also supported  the impugned order passed by the trial court.

Having heard learned counsel for the parties and having perused the record, it is transpired from the record that initially an application under Section 156(3) Cr.P.C. was given by the opposite party no.2 against the appellants alleging therein that on 24.6.2015 the applicant after taking leave from his department was going to his house situated at village  Gonedeeh, Police Station Karchana and when he arrived at Bheerpur Pandey Nursery  at about 7.40 P.M. the appellants/ accused persons stopped him and addressed him with casteist  remarks as well as  intimidated him, abused him and assaulted him with fists and  kicks.  It is further stated that the accused/ appellant Prabhat Kumar Pandey @ Chotey Pandey  took out a country made pistol and with a point blank range fired which was missed, on which, the opposite party no.2 raised an alarm attracting  the passers by on which the accused persons flied away after intimidating him.   He went to the concerned Police Station Karchana in the morning and attempted to lodge an FIR but the same could not be lodged as the police personnels informed him that before lodging an FIR an inquiry is to be made and no FIR on behalf of opposite party no.2  could be lodged.

This application moved by the opposite party no.2 was treated as complaint vide order dated 1.10.2015 passed by the Chief Judicial Magistrate, Allahabad and the opposite party no.2 was testified under Section 200 Cr.P.C., wherein he stated the allegations as levelled in the application moved under Section 156(3) Cr.P.C. / complaint.  The statement of the witness Ram Praksh @ Ram Parvesh was recorded under Section 202 Cr.P.C. along with the witness Chhabinath  who have also alleged the same allegations as stated by the complainant/ opposite party no.2.  The Magistrate vide order dated 28.2.2019 has only summoned Manish Kumar Pandey @ Rupesh Kumar Pandey for committing offence under Sections 323, 504, 506 IPC.  As stated earlier this order was challenged by opposite party no.2 by filing a revision and the order dated 28.2.2019 was set aside by the revisional court and rightly so, by passing the order dated 12.3.2021 and the matter was remanded back to the Magistrate for passing an order afresh.  This order would reveal that absolutely no reason was given by the trial court as to why only one accused namely, Manish Kuamr Pandey @ Rupesh Kuamr Pandey  is being summoned to face trial.

It is also evident that another summoning order of date 3.11.2021 was passed by the trial court whereby all the appellants were summoned to face trial under Sections 323, 504, 506 IPC and this order was again challenged by the complainant/ opposite party no2. by filing another criminal revision no.710/2021 before Sessions Judge, Allahabad  and by passing order dated 9.6.2022 this order of date 3.11.2021 was set aside  by the revisional court and the Magistrate was directed to pass order afresh in the light of the observations made by the revisional court in that order.

It is thereafter the impugned order has been passed by the Magistrate without assigning any reason for summoning the appellants/ accused persons to face trial for committing offences under Sections 323, 504, 506, 307 IPC and 3(1) (10) of SC/ST Act and the order of the tiral court has been passed only under the teeth of the order of the revisional court dated 9.6.2022 as the Magistrate has observed in the impugned order that incident took place on 24.6.2015 i.e. prior to relevant amendment in the said Act (Act No.33 of 1989) and witnesses- Ram Prakash  son of Tejai and Chhabinath corroborated  the prosecution statements as also discussed by the learned revisional court in its order dated 9.6.2022  and thereafter the Magistrate concluded that after considering all the circumstances and statements of prosecution witnesses, he found sufficient grounds to summon the accused persons to face trial for committing the offences mentioned herein above including 307 IPC and 3(1) X of SC/ST Act.  Thus having regard to the observations made by the Magistrate in the impugned order the same  has been passed only on the basis of observations given by the revisional court in the order dated 09.06.2022.

It is also pertinent to mention here that when the impugned order was passed one of the witnesses, namely, Chhabinath had already given an affidavit before the trial court stating that the prosecution story is false and he had never appeared before the trial court for the purpose of recording his statement under Section 202 Cr.P.C. However, the affidavit of the second witness, namely, Ram Parvesh was given on 14.10.2022 after passing  of the impugned order and therefore at the time of passing of the impugned order the affidavit of only one of the prosecution witness, namely, Chhabinath was available on record of the trial court and the same has also been noticed by the trial court while passing impugned order, however, this affidavit has not been given importance while passing the impugned order. 

The law with regard to the summoning of the proposed accused persons on the basis of a criminal complaint is now no more res integra and the same has been settled by the Hon'ble Supreme Court in catena of judgments.

In G.H.C.L. Employees Stock Option Trust VS. India Infalin Ltd. MANU/SC/0271/2013 : 2013(4) SCC 505 , It was emphasized by the Honble Supreme Court that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.

In MANU/SC/1090/1998 : AIR 1998 S.C. 128, M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others held as under:-

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In MANU/SC/0173/1976 : AIR 1976 SUPREME COURT 1947, Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi & others, It is held by The Apex Court that "It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."

"4. It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."

"It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

Perusal of the above law reports would reveal that at the stage of section 204 CR.P.C. the duty of the Magistrate is to search the sufficient grounds or the material/ evidence for summoning as stated earlier the trial court appears to have guided only by the observations made by the revisional court in its order dated 9.6.2022, wherein the revisional court in para no.11 of its judgement dated 9.6.2022 has discussed the allegations as levelled by the complainant in his statement recorded under Section 200 Cr.P.C. and of his witnesses-Ram Prakash @ Ram Parvesh and Chhabinath under Section 202 Cr.P.C. and opined that by not giving any reason or finding with regard to the Caste Certificate filed by the complainant the trial court has committed an illegality and the order (3.11.2021) has been passed in utter disregard to the evidence available on record.

In the statement of complainant recorded under Section 200 Cr.P.C. it is submitted that the incident had occurred at a distant place and nobody known to the complainant  was present there.  Admittedly the complainant had not sustained any injury as the gun shot is stated to have missed.  The two witnesses recorded under Section 202 Cr.P.C. (who have subsequently denied to give any statement under Section 202 Cr.P.C. by filing affidavits)   have stated to  reach the spot after having alarm allegedly raised by the complainant  and castiest remarks were hurled before raising any alarm by the complainant.  Complainant and accused/ appellants are having deep rooted enmity on the basis of dispute pertains to immovable property.

In the considered opinion of this Court the Magistrate at the stage of 204 Cr.PC. with regard to summoning accused persons in complaint case has been given  undoubted wide discretion in the matter which is to be judicially exercised by him and once the Magistrate has exercised his discretion in a judicious way it is not even justified even  for the High Court to substitute its own discretion for that of the Magistrate or to indulge itself into the exercise of examining the case on merits.  In this regard following observations made by the Hon'ble Supreme Court in Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi and others reported in AIR 1979 Supreme Court 1947; MANU/SC/0173/1976, may be recalled; "the Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him.  Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.  Therese considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204."

Thus it is evident that the Magistrate had given reasons for summoning all the appellants under Sections 323, 504, 506 IPC by its earlier summoning order dated 3.11.2021 which was set aside by the revisional court by its order dated 9.6.2022 as the revisional court appears to be not satisfied in the manner  discretion was exercised by the Magistrate and appears to have imposed its own discretion, which, in the considered opinion of this Court,  was totally unwarranted and the Magistrate in passing the impugned order did not exercise its discretion at all and  had passed the impugned summoning order totally under the teeth of the order of the revisional court dated 9.6.2022 without using its discretion,  in other words the impugned order has been passed by the trial court as directed by the revisional court by its order dated 09.06.2022 which is not the scheme of law provided under Chapter XV of the Cr.P.C. as interpreted by the Hon'ble Supreme Court in the decisions discussed herein before. 

The discretion of the Magistrate in appreciating the facts and circumstances of the case in order to assess the sufficient grounds for proceeding further cannot be curtailed  by any court and it is not so that the Magistrate is bound to summon the accused persons in all the cases on the basis of allegations levelled in the statements of the complainant and his two witnesses in their statements recorded under Sections 200 and 202 Cr.P.C.   The duty of the Magistrate is to take various factors into consideration and to weigh the case of the complainant on the touch stone of probability in order to arrive at a conclusion as to what sufficient grounds are available and what offences are being attracted wherein the accused persons may be summoned.   The summoning of the accused persons in a criminal trial is a serious business and in  this regard  the following observation of the Hon'ble Supreme Court  in  Birla Corporation Ltd. Vs. Adventz. Investments and Holdings Ltd. may be recalled:

Complaint filed under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process

25. Under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process:- Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused.

26. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 Cr.P.C. or whether t he complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.

27. In National Bank of Oman v. Barakara Abdul Aziz and Another (2013) 2 SCC 488, the Supreme Court explained the scope of enquiry and held as under:-

"9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has t o be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have."

28. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others (2015) 12 SCC 420, the scope of enquiry under Section 202 Cr.P.C. and the satisfaction of the Magistrate for issuance of process has been considered and held as under:-

"2. Chapter XV Cr.P.C deals with the further procedure for dealing with "Complaints to Magistrate". Under Section 200 Cr.P.C, the Magistrate, taking cognizance of an offence on a complaint, shall examine upon oath the complainant and the witnesses, if any, present and the substance of such examination should be reduced to writing and the same shall be signed by the complainant, the witnesses and the Magistrate. Under Section 202 Cr.P.C, the Magistrate, if required, is empowered to either inquire into the case himself or direct an investigation to be made by a competent person "for the purpose of deciding whether or not there is sufficient ground for proceeding". If, after considering the statements recorded under Section 200 Cr.P.C and the result of the inquiry or investigation under Section 202 Cr.P.C, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so.

3. Chapter XVI Cr.P.C deals with "Commencement of Proceedings before Magistrate". If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate has to issue process under Section 204(1) Cr.P.C for attendance of the accused."

29. Reiterating the mandatory requirement of application of mind in the process of taking cognizance, in Bhushan Kumar and Another v. State (NCT of Delhi) and Another (2012) 5 SCC 424, it was held as under:-

"11. In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code."

33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under:-

"22. ....the Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. 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 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 Cr.P.C., the High Court under Section 482 Cr.PC. 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."

34. In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) 5 SCC 749, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para (28), it was held as under:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in GHCL Employees Stock Option Trust v. India Infoline Limited (2013) 4 SCC 505."

Thus, having regard to all the facts and circumstances of the case, this Court is of the considered view that the order passed by the Magistrate dated 10.10.2022 is passed without considering all the facts and circumstances and evidence available on record and the same has been passed under the teeth of the order of the revisional court dated 9.6.2022 whereby earlier order of the trial court dated 03.11.2021 was set aside. It is to be recalled that earlier by passing order dated 3.11.2021 all the appellants were summoned to face trial under Sections 323, 504, 506 IPC. However by passing impugned order without assigning any reason the appellants have been summoned under Section 307 IPC as well as under 3(1) (10) of SC/ST Act also, under which they were not summoned earlier.

It is to be observed that if the Magistrate is bound to summon the accused persons in all the offences stated by a complainant and his witnesses n their statements recorded under Sections 200 and 202 Cr.P.C. the purpose of inquiry contemplated under Section 202 Cr.P.C. would be frustrated and Section 202 Cr.P.C. would be rendered non existent.

Thus, the appeal filed by the appellants is partly allowed and the summoning order passed by the trial court/ Magistrate  dated 10.10.2022 is modified to the tune that the appellants shall stand summoned to face trial for committing offences under Sections 323, 504, 506 IPC.  The order of the trial court so far as summoning of the appellants under Section 307 IPC and 3(1) (10) of SC/ST Act is concerned is hereby set aside.

It is clarified that during the course of trial, if any clinching evidence is produced before the trial court it shall always be open for the trial court to frame charges under appropriate sections and proceed further strictly in accordance with law and consequential procedure may follow but as of now summoning of the appellants under Section 307 IPC and 3(1) (10) of SC/ST Act may not be sustained.

Observations made herein are only for the  purpose of disposal of the instant appeal and the same shall not be considered as an opinion of merits of this case and will not effect the fate of the trial.

Order Date :- 12.05.2023

Muk