Allahabad High Court
Dipak Kumar Jain And 2 Others vs State Of U.P. And Another on 26 September, 2023
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:187278
Court No. - 89
Case :- APPLICATION U/S 482 No. - 33504 of 2023
Applicant :- Dipak Kumar Jain And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Srijan Pandey,Swetashwa Agarwal
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
1. Heard learned counsel for the applicants and learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash/ set aside inter alia the impugned summoning order dated 04.08.2022 passed by the learned Additional Civil Judge (J.D.), Court-II, Varanasi in Complaint Case No. 23762 of 2021- Sheetal Gupta Vs. Dipak Kumar Jain and others, u/s 323, 498-A, 504 I.P.C and Section 3/4 Dowry Prohibition Act, 1961 as well as the Non Bailable Warrant issued vide order dated 03.05.2023 by the ld. Civil Judge (Jr. Div.) Court No. 2/ A.C.J.M, Court No. 9, Varanasi.
3. Learned counsel for the applicants has challenged the order dated 04.08.2022 with contention that impugned order is bad in eyes of law, as before summoning the applicants, learned Magistrate has not followed the provisions prescribed under Section 202 Cr.P.C. as applicants reside in Dibrugarh, Assam in different state, whereas the provision provided under Section 202 Cr.P.C is reproduced as under:-
"202. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,--
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant."
4. In view of the provisions, summoning order is not maintainable. He next submitted that the order passed by learned Additional Civil Judge dated 04.08.2022, does not contain any material substance before summoning the accused persons. He has placed reliance over the judgment passed by Apex Court in Lalankumar Singh & Ors. Vs. State of Maharashtra. Para 28 of the said judgment is setout 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."
5. In view of the Apex court, judgment and perusal of summoning order, it is clear that before summoning the accused persons, trial court has not given any reason before coming to the conclusion that there is prima facie case is made out against the applicants. In view of the above, the impugned order is not sustainable in the eyes of law and is liable to be quashed. The application under Section 482 Cr.P.C. is allowed. The impugned order dated 04.08.2022 is hereby quashed. The matter is remanded back to the court below for afresh decision, in accordance with law, specifically in view of provisions provided under Section 202 Cr.P.C. and in view of the Apex Court's judgment passed in Lalankumar Singh and others Vs. State of Maharashtra. Learned Magistrate may pass appropriate order considering the provisions under Section 202 Cr.P.C. and apex court's judgment as held in para 28.
Order Date :- 26.9.2023
Nitika Sri.
