Allahabad High Court
Gulsher @ Hero And 2 Others vs State Of U.P. And Another on 15 May, 2023
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:104465
Court No. - 68
Case :- APPLICATION U/S 482 No. - 12096 of 2023
Applicant :- Gulsher @ Hero And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Vimlesh Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Vimlesh Kumar, learned counsel for the applicants, Mr. Amit Singh Chauhan, learned AGA-I for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed with the prayer to quash the entire criminal proceeding of Complaint Case No. 37308 of 2022, Ganpat Vs. Firoz and summoning order dated 27.01.2023 passed by learned Civil Judge (Senior Division)/F.T.C./Additional Chief Judicial Magistrate, Mathura summoned applicants under sections 323, 504, 506, 452 IPC, Police Station Sadar Bazar, District Mathura against the applicants pending before Civil Judge (Senior Division)/F.T.C./Additional Chief Judicial Magistrate, Mathura.
Learned counsel for the applicants submits that there is a dispute regarding drainage between the parties. For the incident dated 12.08.2022 an application u/s 156(3) Cr.P.C. moved by the applicants against four persons including the opposite party no. 2. After getting knowledge about the aforesaid complaint, only for the purpose of harassment an application u/s 156(3) Cr.P.C. moved by the opposite party no. 2 for the incident dated 13.09.2022 which was treated as complaint case and after recording the statements under Sections 200 and 202 Cr.P.C., applicants have been summoned vide order dated 27.01.2023, hence, the present case has been filed. He further submits that the concerned court below has passed the summoning order dated 27.01.2023 in a cryptic and mechanical manner without application of judicial mind as no prima facie satisfaction has been recorded by concerned Magistrate. In support of his submission, he has relied upon the judgement and order of this Court in Mahboob and others Vs. State of U.P. and another, 2017 (2) JIC 320 (All) (LB) and Smt. Shiv Kumar and others Vs. State of U.P. and another, 2017 (2) JIC 589 (All) (LB). Therefore, the same is liable to be quashed.
Per contra, learned A.G.A. opposed the prayer, however, he could not dispute the submissions advanced by learned counsel for the applicant.
I have considered the submissions made by the learned counsel for the parties and have gone through the record.
In Mahboob and others vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (All) (LB), specifically in paragraph Nos. 11 and 12, this Court has observed as follows:-
"(11) In the present case, the learned Magistrate has not conducted any inquiry so as to satisfy himself that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and the result of such inquiry. There is ground for proceedings against the petitioners under Section 204 CrPC. There is nothing on record to show that the learned Magistrate has applied his mind to arrive at a prima facie conclusion. It must be recalled that summoning of accused to appear the criminal court is a serious matter affecting the dignity self-respect and image in the society. A process of criminal court cannot be made a weapon of harassment.
(12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 Cr.P.C. are perused and accused are summoned such order per se itself illegal which could not stand the test of law."
Reliance is also placed upon the judgement of this Court in the case of Smt. Shiv Kumar and others vs. State of U.P. and another, reported in 2017 (2) JIC, 589, (All) (LB). Paragraph No. 10 of the aforesaid judgement is relevant for the controversy in hand. The same is as under :-
"10. Learned Magistrate was required to at least mention in the order about the prima facie satisfaction for summoning the accused. The order must reflect that the learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint. The accused cannot be summoned mechanically merely by writing that perused the statements under Sections 200 and 202 Cr.P.C."
Considering the facts and circumstances of the case and the submissions advanced on behalf of learned counsel for the parties as well as in view of judgments passed in the case of Shiv Kumar (supra) and Mahboob (supra) the impugned summoning order dated 27.01.2023 is hereby set aside and the matter is remitted to the court concerned to decide the same afresh by passing a speaking and reasoned order in accordance with law, after hearing both the parties, within a period of three months from today.
With the aforesaid directions, the present application stands allowed.
Order Date :- 15.5.2023
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