Allahabad High Court
Makibudeen And 2 Others vs State Of U.P. And Another on 2 December, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- MATTERS UNDER ARTICLE 227 No. - 3512 of 2020 Petitioner :- Makibudeen And 2 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Rajeev Chaddha Counsel for Respondent :- G.A.,Sanjai Kumar Pandey Hon'ble Raj Beer Singh,J.
1. Sri Sanjai Kumar Pandey, advocate, has filed vakalatnama on behalf of opposite party no.2, which is taken on record.
2. Heard Sri Rajeev Chaddha, learned counsel for petitioners and Sri Sanjai Kumar Pandey, learned counsel for opposite party no.2 and learned AGA for State.
3. This petition under article 227 of Constitution of India has been filed to set aside the order dated 05.09.2018 passed by Chief Judicial Magistrate, Sidharth Nagar in Complaint Case No. 1848 of 2018 (Smt. Kushlawati Vs. Makibudeen and others), whereby petitioners have been summoned for offence under sections 376-D, 504, 506 IPC as well as to quash the order dated 09.09.2020 passed by Additional Sessions Judge, Court No. 1, Sidharth Nagar in Criminal Revision No. 124 of 2019 whereby revision filed by the petitioners, against summoning order dated 05.09.2018, has been dismissed.
4. It has been argued by learned counsel for petitioners that the impugned summoning order dated 05.09.2018 passed by the Chief Judicial Magistrate, Siddhartha Nagar as well as the impugned order dated 09.09.2020 passed by Additional Sessions Judge, Court No.1, Siddharth Nagar in Criminal Revision No. 124 of 2019, are against facts and law and thus, liable to be set aside. It was stated that impugned summoning order is quuite cryptic and does not show any application of judicial mind. There is absolutely no discussion about facts of complaint and statement of complainant and witness. Learned counsel submitted that complainant/respondent no.2 was tenant in the house of one of the petitioners but due to her undesirable activities she was asked to vacate the rented room due to which, respondent no. 2 stopped payment of rent and threatened to implicate the petitioners and their family members in false case. Earlier, she has filed a complaint on 25.04.2018 against petitioners and their family members, which was dismissed under Section 203 Cr.P.C. due to non prosecution. It was submitted that Magistrate has called a report from police wherein, it was stated by police that allegations made in complaint, are false and no such incident has taken place but that fact has not been taken into consideration by the courts below. There was no medical report in support of allegations of complaint. Learned counsel further submitted that the impugned summoning order dated 05.09.2018 is a non speaking order and it has been passed in a mechanical manner without recording any appropriate satisfaction for summoning of the petitioners. The revision filed against summoning order dated 05.09.2018 was also dismissed in an arbitrary manner without considering the relevant facts and law. Learned counsel has given much thrust to the argument that in complaint, besides the complainant, five more persons were shown as witnesses but only two of them i.e. PW-1 Noorjahan and PW-2 Abdul Haleem has been examined under Section 202 Cr.P.C. and thus, the provisions of Section 202(2) Proviso Cr.P.C. have not been complied with. Learned counsel submitted that as the complaint was filed under Section 376 of IPC, besides other sections of IPC, thus, the case was triable exclusively by the Court of Session and thus, it was incumbent upon the Magistrate to examine all witnesses of complainant but this provision has not been followed. Learned counsel submitted that in view of above stated facts and circumstances, the impugned orders are not sustainable and thus, liable to be set aside.
5. Learned counsel for respondent no.2 has argued that there is no illegality, perversity or any other material irregularity in the impugned orders. The complainant/respondent no.2 was examined under Section 200 Cr.P.C. and thereafter, in inquiry under Section 202 Cr.P.C. one Noorjahan and one Abdul Haleem have been examined as a witness and after that petitioners have been summoned for the offences under Sections 376-D, 504 and 506 of IPC. It was submitted that material on record makes out a prima facie case against petitioners and there is no illegality in the impugned orders. Further, the impugned summoning order has already been upheld by Session Court in revision. Learned counsel submitted that no case for interference in the impugned orders is made out.
6. Heard learned counsel for parties and perused record.
7. So far as this contention is concerned that case was triable exclusively by Session Court and in the complaint, five more persons were shown as witnesses of incident but only two of them have been examined under Section 202 Cr.P.C. and thus, the provisions of Section 202 (2) Proviso of Cr.P.C. have not been complied with, it may be stated the words "all his witnesses" contained in Sub section (2), proviso to Section 202 Cr.P.C. cannot be read as "all witnesses". It has been held in Satyadeo Pandey and others v. State of U. P. and another, 1987 (1) AWC 572 that words "all his witnesses" connot that all the witnesses of the complainant, associated or connected with his interest and those witnesses who are material and relevant to prove prosecution case, must be examined. The words "all his witnesses" under proviso to Section 202 Cr.P.C. do not refer literally to all prosecution witnesses in number, rather all his witnesses (i.e. of complainant) refer to whom he considers material to prove his case. In Chhotey Lal Vs. State of U.P., 2006 CRI.L.J. 2265, the Court held that all the witnesses in Sub Section (2) Proviso to Section 202 Cr. P. C. do not mean "all the witnesses" named by complainant but all the witnesses which complainant chooses to examine. In this connection reference may also be made to case of Kallu Pal and others v. State of U. P. and Anr., 2008 CRI.L.J. 3229 (Allahabad), Dudh Nath Mishra and others v. State of U. P. and another, 2003 CRI.L.J.1087 (Allahabad), Gopal Singh Vs. Dhanraji and another, 1994 CRI.L.J. 1652 (Allahabad) and Shivjee Singh Vs. Nagendra Tiwary and others, 2010 (7) SCC 578.
8. From above stated case laws it is clear that it is not necessary to examine all the witnesses, who are named in complaint, even if the case is triable exclusively by the Court of Session. It is discretion of complainant to examine some of the witnesses and give up rest of the witnesses. Even when all the witnesses are not examined in a case when it is exclusively triable by Court of Sessions it has been held that process issued by Magistrate to accused is not per se illegal. (Abdul Hamidkhan Pathan and others v. State of Gujrat and others, 1989 CRI.L.J. 468 (DB). Thus, the contention raised by learned counsel has no force.
9. However, so far this contention is concerned that, the impugned summoning order dated 05.09.2018 is a cryptic and a non speaking order and it does not show that the learned Magistrate has applied judicial mind, it has substance. A bare perusal of the impugned summoning order dated 05.09.2018 shows that regarding factual position of the matter only it was mentioned by the learned Magistrate that the complainant has made allegations of rape. Except that no fact or contents of complaint or of statements of witnesses under Section 202 Cr.P.C. were discussed. By impugned order three persons (petitioners) have been summoned for a serious offence of gang rape but no overt act of the petitioners was discussed. There was absolutely no discussion about the statement of complainant recorded under Section 200 Cr.P.C. or about the contents of the statements of witnesses examined under section 202 Cr.P.C.
10. It is well-settled 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. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and that the Magistrate is not to act as a post office in taking cognizance of the complaint. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held as under:-
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998) 5 SCC 749 to set in motion the process of criminal law against a person is a serious matter."
In para (21) of Mehmood Ul Rehman, the Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-
"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But 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. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."
11. In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) 5 SCC 749, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para (28), it was held as under:-
"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."
12. The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was also reiterated in GHCL Employees Stock Option Trust v. India Infoline Limited (2013) 4 SCC 505. 36. To be summoned/to appear before the Criminal Court as an accused is a serious matter affecting one's dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused.
13. In Punjab National Bank and Others v. Surendra Prasad Sinha 1993 Supp (1) SCC 499, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment. At the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused.
14. Similarly 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) held 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."
15. 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 under Section 202 Cr.P.C. 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. It is also settled view the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him and such orders cannot be passed summarily or without applying judicial mind.
16. In the light of the above principles, in the present case it may be seen that the impugned summoning order sans any discussion about facts of complaint or statement of complainant or of witnesses examined under Section 202 Cr.P.C. There are three accused persons but their overt act in alleged offence were also not considered. The three accused persons were summoned for offences under section 376-D, 504, 506 IPC but the impugned summoning 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 of the case and the evidence or the law. In fact it appears that 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.
17. In the light of the judgements referred to above, it is explicitly clear that there must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. In the instant case, as stated above, in the impugned summoning order dated 05.09.2018, regarding facts of the matter merely it was mentioned by the learned Magistrate that the complainant has made allegations of rape. Except that no fact or contents of complaint were mentioned in the impugned order. There was absolutely no discussion about the contents of statements the witness examined under section 202 Cr.P.C. Though learned Magistrate has referred a number of case laws but failed to discuss the contents of complaint and statement of complainant and of witnesses examined under section 202 Cr.P.C. It would be interested to see that learned Magistrate has referred the case of Pepsi Food Limited (supra) as well as case of this court in Pragati Devi Vs. State of UP, Criminal Revision No. 2777/ 2016 but utterly failed to follow the law laid down in these case laws. It is clear that the impugned summoning order passed by the C.J.M. is cryptic, non-speaking and does not stand the test laid down through various case laws of Hon'ble Apex Court as well as by this Court. Learned Revisonal Court also failed to appreciate the above stated infirmities in the impugned order and dismissed the revision vide impugned order 09.09.2020 by upholding the summoning order.
18. This court is not oblivious of fact that in supervisory jurisdiction of this Court over subordinate Courts under Article 227 of Constitution, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. In the instant case it is apparent that the petitioners have been summoned for a serious offence of gang rape by a very cryptic and non-speaking order in flagrant violation of law, which calls for intervention of this Court under Article 227 of the Constitution. Where jurisdiction though available but exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction.
19. In view of aforesaid the impugned summoning order dated 05.09.2018 passed by C.J.M., Siddharth Nagar and impugned order dated 09.09.2020 passed by the Revisional Court, are hereby set aside. Matter is remitted back to the learned C.J.M., Sidharth Nagar to pass the order on point of summoning afresh in accordance with law, without being influenced by any observation made by this Court in this order.
20. Petition is allowed.
Order Date :- 2.12.2020 Mohit