Allahabad High Court
Vineet Jaiswal Alias Raju Jaiswal vs State Of U.P. And Another on 7 February, 2025
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:18228
Court No. - 78
Case :- CRIMINAL APPEAL No. - 7515 of 2024
Appellant :- Vineet Jaiswal Alias Raju Jaiswal
Respondent :- State of U.P. and Another
Counsel for Appellant :- Abhishek Kumar Saroj,Raghuvansh Misra
Counsel for Respondent :- G.A.,Rajesh Kumar Pandey
Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Raghuvansh Misra, learned counsel for the appellant, Sri Kumar Dhananjay, Advocate holding brief of Sri Rajesh Kumar Pandey, learned counsel for the opposite party no. 2 and Sri Bade Lal Bind, learned counsel for the State and perused the record.
3. The present appeal has been filed by the appellant- Vineet Jaiswal Alias Raju Jaiswal with the following prayer :-
"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow the present application and to stay the effect and operation of the cognizance / summoning order dated 07.02.2024 of Special Judge (S.C./S.T. Act), Bhadohi Gyanpur as well as entire proceeding of S.T. No. 41 of 2024 (State vs. Vineet Jaiswal @ Raju Jaiswal and others) arising from charge sheet dated 26.12.2023 in Case Crime No. 0254 of 2023, Police Station Aurai, District Bhadohi under Sections 500, 501, 502, 120-B I.P.C., Section 66 of Information Technology (Amendment) Act, 2008 and Section 3(1)(r) & 3(1)(s) of S.C./S.T. Act, pending in the Court of Special Judge (S.C./S.T. Act), Bhadohi - Gyanpur during the pendency of the trial before the Court below otherwise the applicant would suffer irreparable loss and injury.
And / or to pass such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the case."
4. The facts of the case are that the first information report was lodged on 15.11.2023 by Deenanath Bhaskar the opposite party no. 2 under Sections 500, 501, 502, 120-B I.P.C., Section 66 of Information Technology (Amendment) Act, 2008 and Section 3(1)(da) & 3(1)(dha) of S.C./S.T. Act against the appellant and Vipul Pandey. The contents of the F.I.R. are not being dialated herein since the matter has been agitated on a limited issue.
5. The matter was investigated and an undated charge sheet was submitted before the court concerned against the appellant and Vipul Pandey for offences under Sections 500, 501, 502, 120-B I.P.C., Section 66 of Information Technology (Amendment) Act, 2008 and Section 3(1)(da) & 3(1)(dha) of S.C./S.T. Act. The court of the Special Judge (S.C./S.T. Act), Bhadohi, Gyanpur vide order dated 07.02.2024 took cognizance upon the same and summoned the applicant and the co-accused to face the trial.
6. A limited submission has been made by learned counsel for the appellant that the order of summoning passed on the charge sheet dated 07.02.2024 is a totally non-speaking order and does not reflect that mind has been applied to the facts of the case and law applicable and without the same, the order impugned has been passed in a mechanical manner. Learned counsel for the applicant has relied upon the judgement of the Apex Court in the Case of M/s J.M. Laboratory and others vs. State of Andhra Padesh and another : 2025 Supreme (Online) (SC) 222 and while placing paragraph nos. 8 and 9 of the same has submitted that the Apex Court has again held and reiterated that an order summoning the accused should be a speaking order which must reflect application of mind and cannot be a totally non speaking order, paragraph 8, 9 of the said judgement reads as under :
"8. In the judgment and order of even date in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled "INOX Air Products Limited Now Known as INOX Air Products Private Limited and Another v. The State of Andhra Pradesh", we have observed thus:
"33. It could be seen from the aforesaid order that except recording the submissions of the complainant, no reasons are recorded for issuing the process against the accused persons.
34. In this respect, it will be relevant to refer to the following observations of this Court in the case of Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) 5 SCC 749 (supra):
"28. 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. The 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."
35. This Court has clearly held that summoning of an accused in a criminal case is a serious matter. It has been 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. This Court held that the Magistrate is required to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof and as to whether that would be sufficient for proceeding against the accused. It has been held that the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning the accused.
36. The said law would be consistently following by this Court in a catena of judgments including in the cases of Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609, Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others (2015) 12 SCC 420 and Krishna Lal Chawla and Others v. State of Uttar Pradesh and Another (2021) 5 SCC 435.
37. Recently, a Bench of this Court to which one of us (Gavai, J.) was a Member, in the case of Lalankumar Singh and Others v. State of Maharashtra 2022 SCC OnLine SC 1383 (supra), has observed thus:
"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 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."
39. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra).
40. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed."
9. In the present case also, no reasons even for the namesake have been assigned by the learned Magistrate. The summoning order is totally a non-speaking one. We therefore find that in light of the view taken by us in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled "INOX Air Products Limited Now Known as INOX Air Products Private Limited and Another v. The State of Andhra Pradesh", and the legal position as has been laid down by this Court in a catena of judgments including in the cases of Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others1, Sunil Bharti Mittal v. Central Bureau of Investigation2, Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others3 and Krishna Lal Chawla and Others v. State of Uttar Pradesh and Another4, the present appeal deserves to be allowed."
7. It is submitted that as such the said order dated 07.02.2024 taking cognizance on the charge sheet and summoning the accused be set aside.
8. Learned counsel for the first informant and learned counsel for the State although opposed the present appeal and submission of learned counsel for the appellant but could not justify that the impugned order dated 07.02.2024 reflects application of mind of the facts of the case and law and is a speaking order.
9. After having heard learned counsel for the parties and perusing the records, it is evident that the argument of learned counsel for the appellant is limited to the fact that the order impugned taking cognizance and summoning dated 07.02.2024 is an order, which does not reflect application of mind and facts and law. Further, the said order is a non speaking order. The Apex Court in the case of M/s J.M. Laboratory and others (supra) has held and reiterated that the summoning has to be an order which must reflect that mind has been applied to the facts and law of the case and should not be a totally non speaking one.
10. In the present case, the order summoning is a totally non speaking order, which does not reflect an application of mind to the facts of the case and the law. The impugned order dated 07.02.2024 passed by the Special Judge (S.C./S.T. Act), Bhadohi Gyanpur is thus quashed and set aside.
11. The present appeal is allowed.
12. The matter is remanded back to the court concerned to pass appropriate order as per law within a period of 45 days from the date of production of certified copy of this order.
13. The applicant shall file the certified copy of this order before court concerned within a period of 10 days from today for its compliance and necessary action.
(Samit Gopal,J.)
Order Date :- 7.2.2025
Manoj
