Allahabad High Court
Vijendra Singh And 2 Others vs State Of U.P. And Another on 29 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1983
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 77 Case :- APPLICATION U/S 482 No. - 37532 of 2019 Applicant :- Vijendra Singh And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Counsel for Opposite Party :- G.A. ******* Hon'ble Ram Krishna Gautam,J.
1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Vijendra Singh, Raghuraj Singh and Udham Singh, against State of U.P. and Lekhraj, Son of Ratan Singh, with a prayer for quashing of entire criminal proceeding, including, setting aside summoning order, dated 17.7.2019, passed by the Judicial Magistrate, Jewar, Gautam Buddh Nagar, in Complaint Case No. 103 of 2017 (Incorrectly mentioned as Criminal Complaint Case No.103 of 2015 in the Application), Lekhraj vs. Vijendra and others, for ofences, punishable, under Sections 323, 504 and 506 of IPC, Police Station- Jewar, Distric-Gautam Buddh Nagar
2. Learned counsel for applicants argued that an application, under Section 156(3) of Code of Criminal Procedure, 1973, (In short 'Cr.P.C.'), has been filed by Mukesh against Kishan Singh, Vikas @ Bablu, Girdhari Lal Saini and Shyam Lal Saini, for an occurrence, alleged to be of 4.1.2017, wherein, the Magistrate took cognizance over it, treating it to be a complaint case, and examined the complainant, Mukesh, under Section 200 of Cr.P.C. and his witness, under Section 202 of Cr.P.C., whereupon, accused persons, therein, Kishan, Vikas @ Bablu, Girdhari Lal Saini, Shyam Lal Saini and Bijendra, were summoned, for offences, punishable, under Sections 452, 458, 508 and 120B of Indian Penal Code (In short 'IPC'). This order was challenged before this Court, in a proceeding, under Section 482 of Cr.P.C., being Application U/S 482 No.27477 of 2018, Vijendra Singh vs. State of U.P. and another, wherein, summoning order was quashed, vide order, dated 27.8.2018, relying upon principles laid down by the Apex court as well as this Court, mentioned in above order. Again, with same malice, this false complaint was filed, with a little variance of date of occurrence by the father of the complainant, i.e., Lekhraj, wherein, occurrence is said to be of 26.8.2016, at 9.30 PM, in night, and it was for causing damage to the boundary wall of the house of the complainant, but no summoning was there, for offence, punishable, under Section 427 of IPC, rather, impugned summoning order was passed for offences, punishable, under Section 323, 504 and 506 of IPC, and it was based on the enquiry made by the Magisrate, wherein, statements of complainant, Lekhraj, was recorded, under Section 200 and his son, under Section 202 of Cr.P.C., and on this testimony only, impugned summoning order has been passed, whereas, in previous proceeding, this Court has appreciated principles laid down, by the Apex Court, in the case of M/S. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, reported in 1998, UPCr.R 118, that 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. But, impugned summoning order, passed herein, is apparently, without application of judicial mind by the Magistrate, concerned. Hence, it was misuse of process of court and, therefore, this proceeding, with above prayer for setting aside same.
3. Learned AGA, representing State of U.P., has vehemently opposed this Application.
4. Heard learned counsel for both sides and gone through materials on record as well as impugned summoning order.
5. From very perusal of the complaint, which was filed for an occurrence of 4.1.2017, it is apparent that dispute regarding boundary wall, in between Vijendra and complainant, has been there and for this dispute, alleged occurrence has been said to have been committed, wherein proceedings, under Sections 107/116 of Cr.PC, in between two sides, were said to have been taken by the Executive Magistrate.
6. This fact of dispute and same being a motive for this repeated filing of complaint is being argued by learned counsel for applicants.
7. Present occurrence is not a subsequent occurrence to above previous instituted complaint, rather, it was a previous occurrence of another date of 26.8.2016, at 9.30 PM, for which an Application, under Section 156(3) of Cr.P.C. was filed and it was subsequently treated to be a complaint, by way of taking cognizance by the Magistrate and it was numbered as Complaint Case No. 103 of 2017, whereupon, the Magistrate made its enquiry in which, complainant, Lekhraj, was examined, under Section 200 of Cr.P.C. and his witness was examined under Section 202 of Cr.P.C., thereupon, this impugned summoning order was passed.
8. Contention, in this complaint, was that on 26.8.2016, at 9.30 PM, while, complainant, alongwith his son, Mukesh, was at home, situated at Modalpur, on hearing some noise, he thrown light of Torch towards that direction and saw that 7-8 persons were demolishing the wall of his house. They were Vijendra Singh, Raghuraj Singh and Udham Singh, Residents of Village Chorauli, Police Station Jewar, District Gautam Buddh Nagar, accompanied by 4-5 other unknown persons, who can be identified by him in identification parade, if any. On being objected by the complainant, they did assault, with abuse and scuffle, and they also extended threat of dire consequences. On making hue and cry, many persons rushed due to which accused persons ran away from the spot. Earlier also, these persons committed such occurrence on 11/12.02.2016, for which an application was given at Police Station-Jewar, on 12.2.2016. Proceeding, under Section 107/116 of Cr.P.C., was taken by the Police, in between. Thenafter, this occurrence was again committed by the accused persons on 26.8.2016, for which this complaint.
9. Above statement of complainant is fully intact in the statement, recorded, under Section 200 of Cr.P.C. as well as under Section 202 of Cr.P.C. Accordingly, order for summoning, for offences, punishable, under Sections 323, 504 and 506 of IPC, is substantiated by evidence, collected by the Magistrate, in its enquiry.
10. This Court, in the case of Mahboob and others vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (All) (LB) held as follows.
"(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 Cr.PC. 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."
11. 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)B, wherein, this Court has observed as follows:-
"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."
12. 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 has been observed:
"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.
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.
13. In the case of M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118, Apex Court held as follows :-
"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."
14. In the case of Paul George vs. State, 2002 Cri.L.J. 996, Apex Court, laid down as under:-
"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."
15. In the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89, the Apex Court has laid down as under:
"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."
16. In the case of Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520, the Apex Court had held as under:
"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."
17. In view of law laid down by the Courts, as above, the factual aspect, which is apparently on record, is in support of above summoning order, this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make analytic analysis of factual aspect, having been submitted by learned counsel for applicants, that applicants are old age persons, having no criminal antecedents, and one of whom is also a Government employee, and is posted as the Secretary of Mandi Samiti, at Aligarh, but facing this false prosecution, being malicious, is to be seen, by the Trial court, at the time of appreciation of evidence, to be recorded, under Section 244 of Cr.P.C. and in further proceeding, under Section 245 of Cr.P.C. At this juncture, there appears to be sufficient evidence on record.
18. In view of what has been discussed, hereinabove, this Application, being devoid of merit, deserves to be dismissed and it stands dismissed accordingly.
19. However, the Magistrate, will consider factual aspects argued and presented before him, at the time of hearing of Application, moved, under Section 245 of Cr.P.C.
29.11.2019 bgs/-