Lal Ji Verma And 2 Other vs State Of U.P. And Another
2023 Latest Caselaw 15615 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:109342
 
Court No. - 81
 

 
Case :- CRIMINAL APPEAL No. - 10145 of 2022
 

 
Appellant :- Lal Ji Verma And 2 Other
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Sunil Kumar,Prem Sagar Verma
 
Counsel for Respondent :- G.A.,Jitendra Kumar Yadav
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Sri Sunil Kumar, learned counsel for the appellants and Shri Jitendra Kumar Yadav, learned counsel for opposite party no.2 as well as learned A.G.A. for the State and perused the record.

The present appeal under Section 14-A(1) of the S.C./S.T. Act has been preferred by the appellants- Lal Ji Verma, Vikky @ Naresh Kumar Verma and Banti @ Paresh Kumar with the prayer to allow the present Criminal Appeal and to set aside the order of cognizance/ summoning dated 26.7.2025 and the impugned charge sheet No. 175/2022 dated 31.05.2022 passed by the learned Special Judge (SC/ST Act), Pilibhit as well as the entire proceeding of SS.T. No. 1128/2022 (State of U.P. vs. Lal Ji Verma & others) under Sections 420, 406, 504, 506 IPC and Section 3(1) Da, 3(1)Dha, 3(2) (Va) of the SC/ST Act, Police Station Sungarhi, District Pilibhit (arising out of Case Crime No. 172/2022) and also to quash the entire proceedings of S.S.T. No. 1128/2022 (State of U.P. vs. Lal Ji Verma & others) under Sections 420, 406, 504, 506 IPC and Section 3(1) Da, 3(1) Dha, 3(2) (Va) of the SC/ST Act, Police Station Sungarhi, District Pilibhit, pending in the court of learned Special Judge (SC/ST Act), Pilibhit.

Vide order dated 8.5.2023 the case was directed to be listed today as it was undertaken by the appellants that the dispute between the parties may be amicably settled and a demand draft of Rs. 2,50,000/- shall be paid to the opposite party no.2 before this Court.

Learned counsel for the appellants submits that the appellants have refused to pay any amount to the opposite party no.2.

Learned counsel for the appellants has raised various submissions with regard to the merits of the case in order to project that the trial court has committed material illegality in summoning the appellants to face trial and thus according to learned cousnel for the appellants all the proceedings including the submission of charge sheet as well as orders pertaining to taking of cognizance and issuance of process are illegal and be set aside.

Learned AGA has, however, supported the impugned order.

Learned counsel for opposite party no.2 submits that after thorough investigation charge sheet has been submitted and the Special Court after application of judicial mind has taken cognizance of the offences keeping in view the material collected by the Investigating Officer during the course of investigation and process has been issued against the appellants which may not be termed as either irregular or illegal.

Having heard learned counsel for the parties and having perused the record, there cannot be any other proposition than the fact that at the stage of summoning on the basis of the charge sheet meticulous exercise of appreciating the evidence is not required to be done and only a prima facie case is required to be seen for further progress of the trial and also sufficiency of material and a difference is to be understood between the summoning on the basis of charge sheet filed by a Senior Police Officer in case of SC/ST Act and summoning on the basis of complaint and this distinction has been highlighted by the Honble Supreme Court in State of Gujrat Vs Afroz Mohammed Hasanfatta reported in 2019 SCC online SC 132; while considering the obligation of magistrate at the time of issuance of summons to the accused persons while taking cognizance of offences on a police report submitted under section 173 of the Code Of Criminal procedure, formulated following point and answered it as under :-

"While taking cognizance of an offence under Section 190(1) (b) Cr.P.C., whether the court has to record reasons for its satisfaction of sufficient grounds for issuance of summons:-

13. The charge sheet was filed in Criminal Case No.47715/2014 on 18.08.2014 against the accused persons namely Sunil Agrawal and Ratan Agrawal. In the first charge sheet, the respondent-Afroz Mohammad Hasanfatta (Afroz Hasanfatta) was referred to as a suspect. In the second supplementary charge sheet filed on 15.11.2014 in Criminal Case No.62851/2014, the respondent-Afroz is arraigned as accused No.1 and Amit @ Bilal Haroon Gilani as accused No.2. In the second supplementary charge sheet, prosecution relies upon the statement of witnesses as well as on certain bank transactions as to flow of money into the account of the respondent-Afroz Hasanfatta and his Company-Nile Trading Corporation. The order of taking cognizance of the second supplementary charge sheet and issuance of summons to the respondent-Afroz Hasanfatta reads as under:- "I take in consideration charge sheet/complaint for the offence of Section 420, 465, 467, 468 IPC etc. Summons to be issued against the accused."

14. The first and foremost contention of the respondent-accused is that summoning an accused is a serious matter and the summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto and in the present case, the order for issue of process without recording reasons was rightly set aside by the High Court. In support of their contention that the summoning order must record reasons showing application of mind, reliance was placed upon Pepsi Foods Ltd. The second limb of submission of the learned senior counsel appearing for the respondent-accused is that there has to be an order indicating the application of mind by the Magistrate as to the satisfaction that there are sufficient grounds to proceed against the accused irrespective of the fact that whether it is a charge sheet by the police or a private complaint.

15. It is well-settled 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 the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused. Reliance was placed upon Bhushan Kumar and another v. State (NCT of Delhi) and another (2012) 5 SCC 424 wherein 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 Section 190 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.

12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued." [underlining added]

16. After referring to Bhushan Kumar, Videocon International Limited and other decisions, in Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held as under:-

"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998) 5 SCC 749 to set in motion the process of criminal law against a person is a serious matter."

The above observations made in para (20) is in the context of taking cognizance of a complaint. As per definition under Section 2(d) Cr.P.C., complaint does not include a police report.

17. The learned senior counsel appearing for the respondent accused relied upon various judgments to contend that while taking cognizance, the court has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior counsel appearing on behalf of the respondent-accused relied upon judgments in the case of Pepsi Foods Ltd. and Mehmood Ul Rehman to contend that while taking cognizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the 12 accused for that offence. On the facts and circumstances of those cases, this Court held that 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. However, what needs to be understood is that those cases relate to issuance of process taking cognizance of offences based on the complaint. Be it noted that as per the definition under Section 2(d) Cr.P.C, 'complaint' does not include a police report. Those cases do not relate to taking of cognizance upon a police report under Section 190(1)(b) Cr.P.C. Those cases relate to taking cognizance of offences based on the complaint. In fact, it was also observed in the case of Mehmood Ul Rehman that "under Section 190(1)(b) Cr.P.C., the Magistrate has the advantage of a police report; but under Section 190(1)(a) Cr.P.C., he has only a complaint before him. Hence, the code specifies that "a complaint of facts which constitutes an offence".

18. Section 190(1)(a) Cr.P.C. provides for cognizance of complaint. Section 190(1)(b) Cr.P.C. deals with taking cognizance of any offence on the basis of police report under Section 173(2) Cr.P.C. Complaint is defined in Section 2(d) Cr.P.C. which reads as under:-

"2. Definitions. ??. (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has 13 committed an offence, but does not include a police report."

The procedure for taking cognizance upon complaint has been provided under Chapter XV ? Complaints to Magistrates under Sections 200 to 203 Cr.P.C. A complaint filed before the Magistrate may be dismissed under Section 203 Cr.P.C. if the Magistrate is of the opinion that there is no sufficient ground for proceeding and in every such case, he shall briefly record his reasons for so doing. If a complaint is not dismissed under Section 203 Cr.P.C., the Magistrate issues process under Section 204 Cr.P.C. Section 204 Cr.P.C. is in a separate chapter i.e. Chapter XVI ? Commencement of Proceedings before Magistrates. A combined reading of Section 203 and Section 204 Cr.P.C. shows that for dismissal of a complaint, reasons should be recorded. The procedure for trial of warrant cases is provided in Chapter XIX ? Trial of Warrant Cases by the Magistrates. Chapter XIX deals with two types of cases ? A ? Cases instituted on a police report and B ? Cases instituted otherwise than on police report. In the present case, cognizance has been taken on the basis of police report.

19. In a case instituted on a police report, in warrant cases, under Section 239 Cr.P.C., upon considering the police report and the documents filed along with it under Section 173 Cr.P.C., the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate considers the charge against the accused to be groundless and record his reasons for so doing. Then comes Chapter XIX-C ? Conclusion of trial - the Magistrate to rendering final judgment under Section 248 Cr.P.C. considering the various provisions and pointing out three stages of the case. Observing that there is no requirement of recording reasons for issuance of process under Section 204 Cr.P.C., in Raj Kumar Agarwal v. State of U.P. and another 1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under:-

"As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. P.C. detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law, ??? At the stage of Section 204 Cr. P.C. if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons.

8. A bare reading of Sections 203 and 204 Cr.P.C. shows that Section 203 Cr.P.C. requires that reasons should be recorded for the dismissal of the complaint. Contrary to it, there is no such' requirement under Section 204 Cr.P.C. Therefore, the order for issue of process in this case without recording reasons, does not suffer from any illegality." [underlining added]

We fully endorse the above view taken by the learned Judge.

20. . In para (21) of Mehmood Ali Rehman, this Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-

"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."

21 . In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding?.."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming 16 that the accused has committed an offence?..". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.

22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file."

The above law report would make crystal clear that at the stage of summoning on the basis of charge sheet by the Special Court or the Magistrate as the case may be the trial court is not required to pass a detailed and elaborate order and if the process has been issued after taking cognizance it would be sufficient indication by the Special Court or the Magistrate as the case may be that they have applied their judicial mind on the material collected by the Investigating Officer during the course of investigation.

I have gone through the material which has been placed on record and do not find any illegality either in submission of charge sheet or in passing the orders whereby the cognizance has been taken and process has been issued against the appellants as well as the consequential orders whereby the coercive process has been issued against the appellant. In result the appeal lacks merits and is dismissed accordingly.

Order Date :- 18.5.2023

Muk