Smt. Munni And Another vs State Of U.P. And Another
2023 Latest Caselaw 27566 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:193629
 
Court No. - 81
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1504 of 2023
 

 
Petitioner :- Smt. Munni And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Rajeev Pandey,Vijay Kumar Pandey,Vineeta Devi
 
Counsel for Respondent :- G.A.,Devendra Kumar Mishra
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Mrs. Mamta Singh, Advocate, holding brief of Mrs. Vineeta Singh, learned counsel for the petitioners, Sri Devendra Kumar Mishra, learned counsel for the respondent no.2 and learned A.G.A. for the State.

2. The relevant facts are as follows:

(i) Seetaram Sharma (respondent no.2 herein) filed an application against the opposite side including Smt. Munni and Ram Sevak (petitioner nos.1 and 2 herein and two others) with the allegations in nutshell that applicant inherited property i.e. plot no.238 from his parents and at that time he was minor, hence, he was being taken care of by one Savitri Devi, the opposite party no.1. When he attained majority, he asked Savitri Devi to get his name mutated in the revenue records. Savitri Devi, instead, on exhortation of Munni Devi and Ram Sevak (i.e. her daughter and son-in-law), executed a sale deed in favour of one Nisha Devi on 08.01.2021. Later on, the applicant came to know that Savitri Devi had got her name entered in revenue records showing the applicant as dead.

(ii) The application was treated as complaint. Statements of the complainant and two witnesses were recorded, (copies whereof are on record). The learned Magistrate summoned the accused persons (the two petitioners herein and two more) to face trial under section 420 I.P.C. by an order dated 16.12.2021. The accused persons preferred a criminal revision no. 10/2022, the same was dismissed by the revisional court by an order dated 19.10.2022.

(iii) Now the petitioners are before this Court for invoking the powers under Article 227 of Constitution of India with the prayer that the impugned orders dated 16.12.2021, passed by Judicial Magistrate, summoning them under section 420 I.P.C. be set aside and further the order dated 19.10.2022 passed by Sessions Judge in revision, whereby the summoning order was affirmed be also set aside.

3. I perused the papers on record. The application moved under section 156 (3) Cr.P.c. mentions a sale deed dated 08.01.2021, copy of sale deed in question bearing that date has been produced by the petitioners herein, which prima facie shows that indeed a property was sold of to one Nisha Devi by Savitri Devi at that time but the number of property was quite different from that mentioned in the application. The sale deed mentions Khata No. 00662, Khasra no. 280. However, the application under section 156 (3) mentions Khata No. 238, Kram Sankhya 356.

4. On the basis of above sale deed dated 08.01.2021, Smt Nisha, the vendee, applied for mutation in her name but Seetaram Sharma filed an objection in the mutation proceedings. The learned court heard both the sides in detail and found that the objections had no legs to stand. Finding no substance in the objection and observing that the Savitri Devi's name was in the record of rights since last 33 years and that the objector was neither the co-sharer nor had any other title in the property, passed an order in favour of Nisha Devi on 05.01.2022. The court also found that Seetaram Sharma had already sold his property in 1978. It is further pointed out that as far as the allegations against the present petitioner are concerned, it is confined to the fact that Savitri Devi was exhorted by them to execute the sale deed of the property belonging to the applicant. Except those allegations, there is nothing else worth mention in the application filed under section 156 (3) Cr.P.C.

5. In all fairness, the counsel for the respondent nos. 2 to 4 admits that at the time of summoning, no documentary evidence viz the copy of the sale deed, copy of the revenue entries, the order of the mutation court etc. were filed and the accused persons were summoned solely on the basis of oral evidence. It is also fairly admitted that the Gata number mentioned in the disputed sale deed is different from the Gata number mentioned in the application moved under section 156 (3) Cr.P.C.

6. The main contention of the petitioner is that even if, it is presumed that there is some substance in the allegations, the dispute was purely of civil nature and nothing more.

7. It has been observed in innumerable cases that the unscrupulous or disgruntled litigant may try to convert a dispute purely of civil nature into a case of criminal nature, in order to attain different objectives which need not be elaborated here.

8. The Supreme Court in Mitesh Kumar J. Sha vs. State of Karnataka, Criminal Appeal No. 1285 of 2021, decided on 26.10.2021 produced the relevant observations made by the Supreme Court itself in M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd. and Others, 2006 (6) SCC 736 as below:

"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors.... There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involved any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."

9. In the same judgement, the Apex Court referred to certain observation given by itself in Randheer Singh vs. The State of U.P. and Others, decided on 02.09.2021 in Criminal Appeal No.932 of 2021 saying that there can be no doubt that a complaint disclosing civil transaction may have a criminal texture; however the High Court has to see whether the dispute of a civil nature has been given colour of criminal offence. In succeeding para-47, the Apex Court observed as below:-

"47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of process of law which must be discouraged in its entirety."

10. This fact cannot be ignored that the procedure provided under section 200 and 202 Cr.P.C. was followed by the court concerned however admittedly, no documentary evidence was produced by the complainant to substantiate his allegations. This position of law requires no elaboration that at the time of summoning, the Magistrate has to find out whether any, if so, what prima facie case is made out from the evidence produced by the complainant , before proceeding to summon the accused persons. The meaning of 'prima facie case' has been very well explained in the judgment give by this Court in Criminal Appeal No. 9188 of 2022, Dr. Divya Nanda Yadav and another vs. State of U.P. and Another. In that case before the High Court, the application moved under section 156 (3) was treated as complaint. The Magistrate went on to proceed under sections 200 and 202 Cr.P.C. and thereafter summoned the accused persons. Examining the scope of inquiry as envisaged under section 200 and 202 Cr.P.C., the High Court referred to judgment given by the Supreme Court in Fiona Shrikhande Vs. State of Maharashtra and another (2013) 14 SCC 44. The relevant portion of the judgment in Dr. Divya Nand Yadav(supra) is being reproduced as below:

"8. It is clear that the examination of witnesses under Section 202 Cr.P.C., as is popularly known, is in fact part of inquiry which a Magistrate may conduct in cases he does not find enough of grounds to immediately proceed to summon the accused. Though not always, this part of procedure too has become a routine matter. In almost all the cases based on complaint, the witnesses are examined without realizing the fact that such a step shall be unnecessary if the Magistrate/the court concerned is satisfied that prima facie case is made out, on the basis of the examination of the complainant and his witnesses at previous stage of the case i.e. section 200 Cr.P.C. Where the Magistrate finds himself short of requisite level of 'satisfaction' then only he may decide to further probe into by ordering for examination of more witnesses. The reasons behind jumping to the next step of Section 202 Cr.P.C. have gone in to oblivion in the rush of work and almost routinization of things.

9. The phrase occurring in Section 202 Cr.P.C. "inquire into the case himself" enjoins the Magistrate that he actually plays its part by examining the witnesses himself, rather than depending upon the statements which might be clouded, cryptic, obscure or ambiguous and sometime very direct and bald. The experience in courts strengthens the impression that more often then not unsupervised, one sided statement may have more to conceal than to reveal. It is said that law is a living being. It grows and develops according to the exigencies of the times. It will not be out of context to mention that the superior courts have observed in a number of cases that the trial courts ought to be quite alert when they decide to take cognizance or summon the accused persons, may be at the stage of Section 204 Cr.P.C. or otherwise. The superior courts have consistently kept on cautioning the courts to be quite circumspect, careful, alert and wakeful while putting the legal machinery in motion. The vicissitudes of cases, peculiar facts and situations do impact the interpretations of law and contribute towards the developments and progress of legal arena.

10. There cannot be two opinions on the settled legal position that the Magistrate has to decide whether prima facie any case is made out or not, before proceeding to summon the accused persons. The meaning of prima facie case must be understood in the right perspective. There may be cases where the Magistrate finds that in literal sense of the words occurring in the statements the ingredients of an offence are there but he feels not so satisfied with them. The Hon'ble Supreme Court in para-11 of the judgment passed in Fiona Shrikhande vs. State of Maharashtra and Another; (2013) 14 SCC 44, observed as below:-

"At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to "prima facie satisfy" whether there are "sufficient grounds to proceed" against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint."

The Supreme Court has used the pharse arriving at "prima facie satisfaction" whether there are "sufficient grounds to proceed"! Section 204 Cr.P.C. nowhere said that the Magistrate shall take cognizance and summon the accused if prima facie case is made out, instead Section 204 Cr.P.C. says that the Magistrate may take cognizance if there is sufficient ground for proceeding, hence in my view the prima facie case must be construed to mean "prima facie satisfaction" arrived at by the Magistrate. In other words the Magistrate shall proceed only if he finds that there is sufficient ground for the same. This is not to say that the proposed accused shall have any right to be heard at that stage or that any evidence in defence can be considered. It merely means that the Magistrate shall assess all the material before it and apply its mind to find out whether time has come to proceed and take cognizance. In that view of the matter the Supreme Court in the case as aforesaid has instead of using the word "prima facie case" has found fit to use the phrase "prima facie satisfaction" and of course this satisfaction has to be arrived at while acting within the four corners of law i.e., by adopting the procedure as provided under Sections 200 and 202 Cr.P.C. In may view, the Magistrate is not powerless to examine the truth or falsehood of the case made in the complaint. And to fully utilize this power the Magistrate has to play its role of examining himself the complaint and his witnesses under Sections 200 Cr.P.C., and if required to further inquire into by calling more witnesses and examining them or even by ordering investigation. The steering wheel of the inquiry cannot be left at the hands of the complainant. For the reason that at that stage, the accused has no say in the matter and the court has no opportunity to hear the other side, therefore he ought to remain very cautious, circumspect and alert. The broad probabilities or improbabilities of the story of course may be seen at this stage.

11. The relative scope of Sections 203 and 204 Cr.P.C. were noted and considered by the Supreme Court in Pepsi Food Limited and another vs. Special Judicial Magistrate and others; (1998) 5 SCC 749, is as below:-

"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. 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 Supreme Court emphasized the need that the Magistrate should not sit like a silent spectator."

12. The fact of the matter is that the court shall not proceed in a mechanical or a routine manner. It shall apply its mind, which is called a judicial mind and discretion as well. The court/the Magistrate, though shall not go deep into the evidence given and shall not weigh the evidentiary value in a meticulous manner. Except this rider, there is no other obstacles before the court below for arriving at the "prima facie satisfaction" a word which can be equated with the word "prima facie case".

13. In my view, the judicial process should not became a tool for oppression or avoidable harassment. I am of the opinion that there was not sufficient material to proceed to take cognizance and summon the accused persons, The Magistrate is not expected to pass an order mechanically. None of the ingredients of section 420 I.P.C., existed. The order is wholly without basis, therefore, this petition deserves to be allowed.

14. In view of the above observations, the present petition is allowed and the impugned orders dated 19.10.2022 passed by Learned Sessions Judge, Jalaun at Orai in Criminal Revision No. 10 of 2022 (Smt. Munni and another Vs. State of U.P. and another) and order dated 16.12.2021 passed by learned Judicial Magistrate, Orai, District- Jalaun in Complaint Case No. 90 of 2021 (Seetaram Vs. Savitri Devi and others) under section 420 I.P.C. P.S.- Kotara, District Magistrate- Jalaun, are hereby quashed.

Order Date :- 9.10.2023

Sumit Kumar