Haji Munauwar And Another vs State Of U.P. And Another
2024 Latest Caselaw 18610 ALL

Allahabad High Court

Haji Munauwar And Another vs State Of U.P. And Another on 23 May, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:93615
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 4790 of 2023
 

 
Revisionist :- Haji Munauwar And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Ambreen Masroor,Sadrul Islam Jafri,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. N.I. Jafri, the learned Senior Counsel assisted by Mr. S.I. Jafri, the learned counsel for revisionists and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. Challenge in this criminal revision is to the summoning order dasted 19.06.2023 passed by Chief Judicial Magistrate, Rampur in Criminal Case No. 381 of 2023 (State of U.P. Vs. Haji Munauwar and Another), under Sections 420, 406 IPC, Police Station-Tanda, District-Rampur, whereby Court below has summoned the revisionists in aforementioned criminal case.

4. Record shows that an FIR dated 18.02.2022 was lodged by first informant-opposite party-2, which was registered as Case Crime No. 0080 of 2022, under Sections 420, 406 IPC, Police Station-Tanda, District-Rampur. In the aforesaid FIR, two persons namely Haji Munauwar and Mohd. Azhar Ali have been nominated as named accused.

5. After lodging of aforementioned FIR, Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter-XII Cr.P.C. On the basis of material collected by Investigating Officer during course of investigation, he came to the conclusion that criminality alleged against the named accused is fully established. He, accordingly, submitted the police report dated 25.04.2022 in terms of Section 173(2) Cr.P.C., whereby both the named accused were charge sheeted under Sections 420, 406 IPC.

6. Upon submission of aforementioned police report, cognizance was taken upon same by concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. and simultaneously, he summoned the revisionists in the Consequential Criminal Case i.e. Criminal Case No. 381 of 2023 (State of U.P. Vs. Haji Munauwar and Another), under Sections 420, 406 IPC, Police Station-Tanda, District-Rampur vide order dated 21.01.2023.

7. Feeling aggrieved by the above order dated 21.01.2023 passed by Court below as well as the charge sheet dated 25.04.2022, named accused preferred Criminal Misc. Application U/s 482 Cr.P.C. No. 15177 of 2023 (Haji Munauwar and Another Vs. State of U.P. and Another). The said application was partly allowed by this Court vide order dated 27.04.2023. For ready reference, the same is reproduced herein under:-

"1. List revised.

2. Heard Sri N.I. Jafri, learned Senior Advocate assisted by Sri Sadrul Islam Jafri, learned counsel for the applicants, Sri Ankit Srivastava, learned counsel for the State and perused the material brought on record.

3. The present application U/S 482 Cr.P.C. has been filed by the applicants- Haji Munauwar and Mohd. Azhar Ali with the prayer to quash the Charge Sheet dated 25.4.2022 as well as summoning order dated 21.1.2023 and entire proceedings of Criminal Case No.381 of 2023 (State Vs. Haji Munauwar and others) arising out of Case Crime No. 80 of 2022, u/s 420, 406 IPC, P.S. Tanda, District Rampur pending in the court of C.J.M. Rampur and with a further prayer to stay the effect and operation of the aforesaid order and stay the further proceedings of the aforesaid case, during the pendency of the present application.

4. Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that the order summoning the applicants dated 21.1.2023 is totally non speaking order and without application of mind. It is further argued that the said order does not even speak of as to who are the accused, the satisfaction of the court concerned regarding their being a prima facie evidence against them and also as to under what sections the accused persons have been summoned. It is argued that as such the order impugned dated 21.1.2023 is bad in the eyes of law as it suffers from inherent defect.

5. In support of the aforesaid submission, reliance is placed upon the judgement of this Court in the case of Mahboob and others vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (All) (LB). Paragraph Nos. 10, 11 and 12 of the said judgement are relevant for the controversy in hand and are accordingly reproduced herein under:-

"(10) Hon'ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:

"14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry " has been defined under Section 2(g) of the Code, the same reads as follows:

"2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,"

It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code."

(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 CrPC 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:-

"Learned Magistrate was required to atleast 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."

Reference may also be made to the judgement of this Court in the case of Hariram Verma and 4 Others Vs. State of U.P. and Anohter, reported in 2017 (99) ALL CC 104, wherein the following observations have been made in paragraphs 7 to 16:

"7. A perusal of this impugned summoning order indicates that learned Magistrate had noted in the impugned order the contents of complaint and evidences u/s 200 and 202 CrPC but had neither any discussion of evidence was made, nor was it considered as to what overt act had allegedly been committed by accused. This contention of learned counsel for the applicants cannot be ruled out that leaned counsel have noted the contents of complaint and statements without considering its probability or prima facie case, and whether he had actually considered statements u/ss 200, 202 CrPC or the documents of the original. At stage of summoning, the Magistrate is not required to meticulously examine or evaluate the evidence. He is not required to record detailed reasons. A brief order which indicate the application of mind is all that is expected of him at the stage.

8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law.

9. In ruling "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :-

"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 the accused. Magistrate had 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."

10. In "Paul George vs. State, 2002 Cri.L.J. 996" Hon'ble Supreme Court held:-

"We feel that whatever be the outcome of the pleas raised by the appellant on merit, the order disposing of the matter must indicate application of mind to the case and some reasons be assigned for negating or accepting such pleas.- - - - - It is true that it may depend upon the nature of the matter which is being dealt with by the Court and the nature of the jurisdiction being exercised as to in what manner the reasons may be recorded e.g. in an order of affirmance detailed reasons or discussion may not be necessary but some brief indication by the application of mind may be traceable to affirm an order would certainly be required. Mere ritual of repeating the words or language used in the provisions, saying that no illegality, impropriety or jurisdictional error is found in the judgment under challenge without even a whisper of the merits of the matter or nature of pleas raised does not meet the requirement of decision of a case judicially."

11. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 the Apex Court had held :

"Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far-reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed."

12. It is settled principle that while summoning an accused, the court has to see prima facie evidence. The ''prima facie evidence' means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The enquiry u/s 202 CrPC is limited only to ascertain of truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not.

13. As held by the Courts as above, the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind.

14. In light of this legal position I have gone through the impugned order. A perusal of this order indicates that neither any discussion of evidence was made by learned, nor was it considered as to which accused had allegedly committed what overt act. The five accused persons of complaint were summoned for offences mentioned in it. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered the facts and circumstances of the case and the evidence or the law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. Therefore it is liable to be quashed.

15. In Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520 the Apex Court had held as under:

"20. As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction u/s 482 of the Code."

16. Considering the uncontroverted averment of present petition u/s 482 CrPC as well as affidavit supporting it, the incorrect and unbelievable complaint case, and false implication of five petitioners and the general allegations levelled by informant in her FIR without allegations of any specific act, the incorrectness of cause of action for the complaint and considering the vagueness of information mentioned in complaint, and in light of verdict mentioned in aforesaid rulings of Hon'ble Apex Court, this appears to be a case in which applicants should succeed and the impugned summoning order as well as the complaint case are liable to be quashed."

6. Learned counsel for the State could not dispute the said argument.

7. After hearing the learned counsel for the parties and perusing the records, it is evident that the applicants have been summoned vide order dated 21.1.2023 passed by the trial court. The said order is at page 95 of the paper-book which reads as under:-

"21-1-23

?? ???? ?????? ?0??0 80/22 ???? 420/406 IPC ??? ???????? ???? ??????? ? ??0 ???? ??? ?? ??????? ???? ???? ??????? ???? ???? ???????/?????????? ???? ???? ???? ??????? ??? ????? ?????????? ?????? 28.3.23 ?? ???? ???? ???

?0-??0

C.J.M"

8. A perusal of the said order goes to show that the court concerned has stated that it has received charge-sheet. It has heard and perused the same, there is sufficient ground to take cognizance. Hence it is ordered that cognizance is taken. A case be registered. Summon be issued against the accused. The matter be placed on 28.03.2023 for appearance of the accused persons.

9. Thus looking to the facts of the case and in the light of the judgements as stated above, the said order is totally a cryptic and a non speaking order.

10. The present petition is allowed to the said extent.

11. The matter is remanded back to the trial court to pass fresh order in accordance with law within a period of three weeks from the date of production of a certified copy of this order."

8. Subsequent to above order dated 27.04.2023, Court below upon evaluation of the material on record and as per the directions issued by this Court as noted herein above, has again summoned the revisionists by means of summoning order dated 19.06.2023.

9. Thus feeling aggrieved by the aforementioned order dated 19.06.2023 passed by Court below, revisionists have now approached this Court by means of present criminal revision.

10. Mr. N.I. Jafri, the learned Senior Counsel for revisionists contends that the order impugned is manifestly illegal. With reference to the material on record, he submits that the dispute between the parties is a purely civil dispute and has been dragged into criminal litigation at this stage. He invited the attention of Court to the judgment of Supreme Court in Lalit Chaturvedi and Others Vs. State of U.P. and Anohter, 2024 SCC OnLine SC 171, wherein the Apex Court has observed that there is a growing tendency to drag civil disputes into criminal litigation, which needs to be curbed. On the above conspectus, he, therefore, contends that Court below while passing the cognizance taking order/summoning order has not adverted to the aforesaid facts and circumstances of the case, which has vitiated the same. As such, Court below has not exercised it's jurisdiction under Section 190(1)(b) Cr.P.C. diligently but in a casual and cavalier fashion. Apart from above, this Court in exercise of it's jurisdiction under Section 482 Cr.P.C./Article 227 of the Constitution of India can quash the proceedings to do complete justice between the parties. On the above premise, he, therefore, submits that the order impugned is liable to be set aside by this Court but the entire proceedings of aforementioned criminal case are liable to be quashed by this Court.

11. Per contra, the learned A.G.A. for State-opposite party-1 has opposed the present criminal revision. He invited the attention of Court to paragraphs 3 and 10 of the earlier order dated 27.04.2023 passed by this Court. With reference to above, he submits that since challenge to the charge sheet dated 25.04.2022 was made in the earlier application under Section 482 Cr.P.C. filed by the revisionists before this Court but the said challenge was negated by this Court, therefore, the issue with regard to the validity of the charge sheet has now became final and cannot be reopened in present criminal revision. It is then contended that admittedly the summoning order passed by Court below is in a state case. Referring to the judgment of Supreme Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, AIR 2019 SC 2499, he submits that in a state case, Court while passing the impugned order is not required to pass a detailed order. Even otherwise, from the perusal of the order impugned dated 19.06.2023 passed by Court below, it is evident that Court below has summoned the revisionists only after considering the material on record. As such, no illegality exist in the order impugned. He, therefore, submits that present criminal revision is liable to be dismissed.

12. When confronted with above, the learned Senior Counsel for revisionists could not overcome the same.

13. Having heard the learned Senior Counsel for revisionists, the learned A.G.A. for State-opposite par;ty-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this criminal revision could not be dislodged by the learned counsel for revisionists. As such, the present criminal revision is liable to be dismissed. Moreover, upon perusal of the order impugned passed by Court below, it cannot be said that Court below while passing the impugned order has either committed a jurisdictional error or has exercised it's jurisdiction with material irregularity so as to vitiate the same and warrant interference by this Court.

14. In view of above, this Criminal revision fails and is liable to be dismissed.

15. It is, accordingly, dismissed.

Order Date :- 23.5.2024

Vinay