Madhya Pradesh High Court
Veeru Sharma vs Manish Sharma on 9 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:508
1 MCRC-9043-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 9 th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 9043 of 2016
VEERU SHARMA AND OTHERS
Versus
MANISH SHARMA AND OTHERS
Appearance:
Shri Purushottam Rai - Advocate for the applicants.
Shri Rakesh Kumar Sharma Senior Advocate with Shri Abhijeet Singh
Tomar - Advocate for the respondent No.1.
Dr. Anjali Gyanani- Public Prosecutor for the State.
ORDER
This application under Section 482 of Cr.P.C. has been filed for quashment of
proceedings in case No.3661/2016 pending in the Court of JMFC, Gwalior by which
cognizance under Section 447, 148 and 307 of IPC has been taken against Veeru and
Yatendra and for offence under Sections 147, 148 and 307/149 of IPC has been taken
against the remaining applicants.
2. It is submitted by counsel for applicants that the order taking cognizance is an
unreasoned order and only by mentioning that there appears to be sufficient ground to
take cognizance, cognizance has been taken.
3. By referring to judgment passed by Supreme Court in the case of Pepsi
Foods Ltd. and Another Vs. Special Judicial Magistrate and Others reported in 1998(5)
SCC 749, it is submitted that summoning of accused in a criminal case is a serious
matter and criminal law cannot be put into motion as a matter of cause. The order of
Magistrate must reflect that he has applied his mind to the facts of case. However, the
NEUTRAL CITATION NO. 2025:MPHC-GWL:508
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aforesaid aspect is completely missing.
4. Counsel for respondent No.1 also admitted that order taking cognizance has
been passed without assigning any reasons.
5. Heard the learned counsel for the parties.
6. The Supreme Court in the case of Pepsi Foods (supra) has held as under:-
27. 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.
28. No doubt the magistrate can discharge the accused at any stage of
the trial if he considers the charge to be groundless, but that does not
mean that the accused cannot approach the High Court under Section
482 of the Code or Article 227 of the Constitution to have the
proceeding quashed against him when the complaint does not make out
any case against him and still he must undergo the agony of a criminal
trial. it was submitted before us on behalf of the State that in case we
find that the High Court failed to exercise its jurisdiction the matter
should be remanded back to it to consider if the complaint and the
evidence on record did not make out any case against the appellants, If,
however, we refer to the impugned judgment of the High Court it has
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come to the conclusion, though without referring to any material on
record, that "in the present case it cannot be said at this stage that the
allegations in the complaint are so absurd and inherently improbable on
the basis of which no prudent man can ever reach a just conclusion that
there exists no sufficient ground for proceedings against the accused."
We do not think that the High Court was correct in coming to such a
conclusion and in coming to that it has also foreclosed the matter for the
magistrate as well, as the magistrate will not give any different
conclusion on an application filed under section 245 of the code. ...........
7. Tested on anvil of law laid down by the Supreme Court in the case of Pepsi
Foods (supra), it is clear that order dated 07/05/2016 passed by JMFC Gwalior in case
No.3661/2016 cannot be upheld. Since, there is glaring mistake in the order taking
cognizance, therefore, this Court can always ignore the alternative remedy which is
available to applicants. Accordingly, by ignoring alternative remedy order dated
07/05/2016 passed by JMFC Gwalior is hereby set aside. The matter is remanded back
to Magistrate to decide the question of taking cognizance afresh without getting
influenced or prejudiced by order dated 07/05/2016.
8. With aforesaid observation, application is allowed.
(G. S. AHLUWALIA)
JUDGE
PjS/-
