Allahabad High Court
Riyasat Ali And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 27 May, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2024:AHC-LKO:40889
Court No. - 27
Case :- APPLICATION U/S 482 No. - 4126 of 2024
Applicant :- Riyasat Ali And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Vinay Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Shamim Ahmed,J.
1. Sri Anil Kumar Maurya, Advocate has filed his Vakalatnama on behalf of opposite party No.2 today in Court. The same is taken on record.
2. Heard Sri Vinay Kumar Singh, learned counsel for applicant as well as Sri Anil Kumar Maurya, learned counsel for the opposite party No.2 and Sri Ashok Kumar Singh, learned AGA-I for the State and perused the record.
3. This application u/s 482 Cr.P.C. has been filed with the prayer to quash the entire proceeding of summoning order dated 06.05.2022 passed in Complaint Case No. 7329/2022 under Section 138 N.I.Act, Police Station Alambagh: Ashok Kumar Vs. BSD Projects Pvt Ltd and others, passed by the court of learned Magistrate Additional Court No.11, Lucknow.
4. In compliance of order dated 06.05.2024, the applicant No.1- Riyasat Ali has brought a Demand Draft of Rs. 75,000/- in the name of Ashok Kumar, bearing Draft No. 272718 dated 24.05.2024 (State Bank of India). The said Draft is being handed over to Ashok Kumar, opposite party No.2 before this Court, after keeping the photo stat copy of the same on record.
5. Sri Ashok Kumar, opposite party No.2, who appeared in person and has been identified by this Court Sri Anil Kumar Maurya submits that his client is not interested to pursue any further and he has no objection if the proceedings of the present case be quashed by this Court by exercising power under Section 482 Cr.P.C.
6. Learned A.G.A.-I for the State has also submitted that since the opposite party no.2 is not interested to pursue the matter any further, therefore, no useful purpose would be served if the proceedings of the aforesaid case go on further.
7. After considering the entire facts and circumstances of the case as well as after considering the arguments as advanced by learned counsel for the parties, this Court finds it appropriate to discuss some judgments which have been pronounced by Hon'ble the Supreme Court of India.
8. Hon'ble the Supreme Court of India in the case of Lalankumar Singh and Others vs. State of Maharashtra reported in 2022 SCC Online SC 1383 has specifically held in paragraph No.38 that 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. Paragraph No.38 of Lalankumar Singh and Others (supra) is being quoted hereunder:-
"38. 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 v. Central Bureau of Investigation, 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."
9. Further, Hon'ble the Supreme Court of India has provided guidelines in case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 for the exercise of power under Section 482 Cr.P.C. which is extraordinary power and used separately in following conditions:-
"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused."
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
10. Further the Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192, (iii) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283 and (iv) Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, AIR 2021 SC 1918.
11. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
12. In M/s Pepsi Food Ltd. and another Vs. Special Judicial Magistrate and others: 1998 (5) SCC 749, Hon'ble Apex Court has observed:
"Summoning of an accused in a criminal case, is a serous matter. Criminal law can not 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."
13. In the instant case, there is nothing in the summoning order to show that the Magistrate concerned perused the material available on record before passing summoning order. Hence the summoning order is bad in the eyes of law and resultantly it is not sustainable.
14. Thus, in view of the law laid down by the Hon'ble Apex Court and the facts and circumstances, as narrated above and also with the assistance of the aforesaid guidelines and keeping in view the nature and gravity and the severity of the offence which more particularly is a private dispute and differences, it deems proper and meet to the ends of justice that the proceeding of the aforementioned case be quashed
15. Accordingly, the present 482 Cr.P.C. application stands allowed. Keeping in view the law laid down by the Hon'ble Apex Court in the above referred judgment as well as considering that the cheque amount has already been paid to the opposite party No.2 by way of Demand draft and in view of the statement made by the opposite party No.2 and the observation made above, in the interest of justice, the entire proceedings of Complaint Case No. 7329/2022 under Section 138 N.I.Act, Police Station Alambagh: Ashok Kumar Vs. BSD Projects Pvt Ltd and others, passed by the court of learned Magistrate Additional Court No.11, Lucknow and the summoning order dated 06.05.2022 are hereby quashed so far as it relates to the instant applicant.
16. Office is directed to transmit a copy of this order to the learned trial court concerned immediately.
Order Date :- 27.05.2024
Arvind
