Allahabad High Court
Manish Kumar Yadav And Another vs State Of U.P. And Another on 14 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1017
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. In Chamber Case :- APPLICATION U/S 482 No. - 1262 of 2020 Applicant :- Manish Kumar Yadav And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Amit Daga, Anshul Kumar Singhal Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard Sri Amit Daga, Advocate assisted by Sri Anshul Kumar Singhal, learned counsel for the applicants, at length, learned AGA for the State and perused the record.
On the preliminary submissions raised by learned counsel for the applicants based on solitary legal issue as to whether the summoning order dated 24.10.2019 is in consonance with the mandate of law required u/s 202(1) Cr.P.C. or not? This Court, with the assistance of learned A.G.A., finds it fit to adjudicate the present 482 application at the threshold/admission stage itself.
By means of the present application the applicants have conjured for invoking extra-ordinary jurisdiction of this Court under Section 482 Cr.P.C. against order dated 31.05.2019 passed by the learned Additional Sessions Judge, Saharanpur whereby the lower Revisional court, while allowing Criminal Revision No.231 of 2018 (Pradeep Yadav v. Manish Kumar Yadav and others) has set aside the order dated 09.08.2018 passed by the Chief Judicial Magistrate, Saharanpur in Criminal Complaint No. 4578 of 2018. It has further remanded the case to the court concerned with the direction to pass a fresh order after holding requisite enquiry, as per the requirement enunciated under the provisions of Section 202(1) Cr.P.C. Taking into account the aforesaid direction, the learned Magisterial court, proceeded with the case afresh, recorded statements of the required witnesses and summoned the applicants under Sections 323, 324, 307 and 506 I.P.C., vide order dated 24.10.2019.
Basic punch of the argument advanced by learned counsel for the applicants is that while passing the subsequent summoning order dated 24.10.2019, learned Chief Judicial Magistrate, Saharanpur has not adhered to the mandatory requirements of law as contemplated under Section 202(1) Cr.P.C i.e,. neither he has enquired into the case for himself nor directed the police to investigate into the matter so as to record his prima facie satisfaction and sufficiency of grounds for the summoning of the accused persons. This solitary legal submission beseeched by the learned counsel for the applicants has to be xrayed by this court.
After hearing the rival submissions, keenly perusing the orders under challenge and the relevant documents filed in support of instant 482 application, submitted by counsel for the applicants, it is imperative to pandect facts of the case :-
1. Applicant no. 1 is the son of applicant no. 2, got married with the daughter of opposite party no. 2, thus basically and primarily it is a matrimonial dispute.
2. The daughter of opposite party no. 2, Ms. Niharika got married with applicant no. 1 on 03.03.2014. Admittedly contesting parties are permanent resident of New Delhi and the said marriage too was solemnized in New Delhi. Due to misfortune, the conjugal relationship got sour and strained and there arose rift between husband and wife, resultantly, as a natural corollary, there were number of civil as well as criminal litigations against each other, including proceedings of The Hindu Marriage Act, The Protection of Women from Domestic Violence Act 2005, Maintenance under Section 125 Cr.P.C. so on and so forth, details of which has been annexed as Annexure No.7 to the petition. Needless to mention here that all these proceedings are pending in different forums at New Delhi.
3. An unfortunate incident took place on 25.12.2016 at Saharanpur of which an application u/s 156(3) Cr.P.C was filed before Chief Judicial Magistrate, Saharanpur by opposite party no. 2 on 03.01.2017 with the prayer ; to direct the police to register FIR under Section 307, 308,323,324,504,506 I.P.C., consequently Case Crime No. 141 of 2017 was registered at Police Station Sadar Bazar, Saharanpur on 23.3.2017 under the aforementioned sections of I.P.C. However, the police after investigation submitted its 'closure report' on 24.8.2017. The said closure report was protested by opposite party no.2 on 11.01.2018 and learned Magistrate vide order dated 16.3.2018 has converted the aforesaid protest petition as complaint case and ordered to proceed with the case in accordance with Chapter-XV Cr.P.C and the learned Magistrate after recording statements u/s 200 and 202 Cr.P.C of Puneet Kumar, Satendra Singh and Dr. B.D. Sharma on 22.05.2018, 14.06.2018 and 05.07.2018 respectively, passed summoning order on 09.08.2018 summoning upon the applicants to face the prosecution. In paragraph no. 20 of the petition, it has been alleged that the learned Magistrate has given a complete go-by to the mandatory provisions of Section 202(1) Cr.P.C, as he without holding any enquiry or investigation envisaged under Section 202 Cr.P.C and without recording any reason, in a mechanical fashion, summoned the applicants to face the prosecution under Section 323,324,506 IPC,dropping rest of the sections.
4. Aggrieved by this order of summoning dated 09.08.2018, the applicants preferred Criminal Misc. Application bearing No.2275/2018 whereby the Coordinate bench of this Court, vide judgment and order dated 27.9.2018 quashed the summoning order dated 09.08.2018 and remanded the matter for fresh consideration.
5. On the other hand, aggrieved by the summoning order dated 09.08.2018, whereby the applicants were summoned only under sections 323, 324, 506 I.P.C., the opposite party no.2 preferred Criminal Revision No. 231 of 2018 in the court of the Additional Sessions Judge, Saharanpur.
6. It is argued by the learned counsel for the applicants that while the aforementioned Criminal Revision was pending in the court of the Additional Sessions Judge, Saharanpur, Criminal Misc. Application No. 32275 of 2018 (Manish Kumar Yadav and another v. State of U.P. and others) under section 482 Cr.P.C. was filed by the applicants before coordinate Bench of this Court, which was allowed and the summoning order dated 09.08.2018 was quashed with further direction to the court below for passing order afresh in the matter vide Court's order dated 27.09.2018. Learned counsel for the applicants, however, this fact could not brought to the knowledge of the learned lower revisional court and the learned revisional court too allowed the criminal revision so preferred by the opposite party no.2 vide its order dated 31.05.2019 and the matter was remanded back for fresh consideration in the light of provisions U/s 202(1) & (2) Cr.P.C. The lower revisional court has directed to summon all the witnesses and pass a fresh order.
However, pursuant to the directions of High Court, a fresh summoning order was passed by learned C.J.M. Saharanpur on 24.10.2019 summonsing the applicants under sections 323, 324, 307, 506 I.P.C., which is under challenge by means of instant 482 Application.
From the perusal of subsequent summoning order dated 24.10.2019, it is evident that the learned C.J.M. Saharanpur has carefully scrutinized the statements of Dr. B.D. Sharma/PW-3, whereby he has stated that injury no.1 over the injured was bone deep injury over the scalp and the nature of injury is quite serious which may lead to death of injured, if the treatment is not given within time.
Thus, on the above factual aspect of the issue, it was argued by the learned counsel for applicants(I) that the Magistrate did not hold any enquiry or investigation as contemplated U/s 202(1) Cr.P.C. Neither the complainant nor the witnesses or the other evidences are available on the record. In order to buttress his contentions the learned counsel for the applicants relied upon the judgment of the Hon'ble Apex Court in the case of National Bank of Oman V. Barakara Abdul Ajiz and others 2013(2) SCC page 288 and Ram Dev Food Products Pvt. Ltd. Vs. State of Gujrat 2015 ACC 90 page 53. Besides this, it was also argued that both the parties are permanent resident of Delhi, the marriage was solemnized in Delhi, almost all the civil as well as criminal proceedings are pending before different forums at Delhi, therefore, initiation of present proceedings at Saharanpur is nothing but arm twisting and only for the purposes of harassment of the applicants. The learned Magistrate before passing the impugned summoning order ought to have strictly adhered to the provisions u/S 202 (1) Cr.P.C. Secondly, it is further contended by the learned counsel for the applicants in para 35 of the petition that the alleged injury report of injured is a forged document and veracity as well as validity of Annexure 20 (injury report) was seriously questioned on the ground that the police while investigating into the matter has discarded this document and eventually submitted the closure report.
These are the primary grounds of assailing the impugned summoning order dated 24.10.2019.
I have carefully gone through the impugned summoning order date 24.10.2019 as well as judgment of learned Lower Revisional Court dated 31.05.2019.
Before coming to the merits of case, it is mandatory to spell out the limits of jurisdiction of section 482 Cr.P.C attributed to the High Court and Hon'ble Apex Court in a most lucid terms spelled out it in the judgment of BIRLA CORP. LTD. V. ADVENTZ INVESTMENTS AND HOLDINGS LTD. AND OTHERS Cr. appeal no. 875 2019 decided on 9th May 2019. Paragraph no. 82 and 83 of this judgment is quoted herein below ;
"Para 82. Exercise of power under Section 482 Cr.P.C. envisages three circumstances in which the inherent jurisdiction may be exercised namely:- (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Inherent jurisdiction under Section 482 Cr.P.C though wide has to be exercised sparingly, carefully and with caution.
Para 83 : It is well settled that the inherent jurisdiction under Section 482 Cr.P.C is designed to achieve a salutary purpose and that the criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. When the Court is satisfied that the criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in exercise of the inherent powers, such proceedings can be quashed. In Smt. Nagawwa V. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, the Supreme Court reviewed the earlier decisions and summarized the principles as to when the issue of process can be quashed and held as under :-
Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These consideration, in our opinion, totally foreign to the scope and ambit of an inquiry under Section 202 of the Cr.P.C. which culminates into an order under Section 204 of the Code. Thus, it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:-
(1) where the allegation made in complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
Taking guidance from the aforesaid authority whereby it has been clearly mentioned that once the Magistrate has exercised his discretion, it is not for the High Courts to substitute its own decision for that of the Magistrate or to examine the case on merits with a view to find out whether or not, the allegation in complaint, if true, would ultimately end in conviction of the accused. This consideration is totally foreign to the scope and ambit of Section 202 Cr.P.C. There are only rare cases counted on the fingertips where High Courts should exercise its power under Section 482 Cr.P.C viz;(i) the allegations made in the complaint are the statements recorded in its support, if taken on its face value make out absolutely no case against the accused. (ii) the allegations made in the complaint are patently absurd or inherently improbable and no prudent person could ever reach on a conclusion that there is sufficient ground against the accused. (iii) the discretion exercised by the Magistrate in issuing process is either capricious and arbitrary, based on no evidence or material which solely irrelevant and inadmissible and lastly: (iv) complaint suffers from fundamental legal sanction or absence of complaint by a legally competent authority.
Thus this court has to examine the argument advanced by the counsel for the applicants and prayer sought within the four corners of above mentioned guidelines:
Before analyzing the entire incident, it is imperative to spell out Section 202(1) Cr.P.C.;
"202(1) : Postponement of issue of process - Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, (and shall, in a case where the accused is residing at a place beyond the area in which he exercise his jurisdiction, ) postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200."
In the case of Mahmud-Ul-Rahman and others V. Khazir Md. Tunda, AIR 2015 SC 2195, it has been explicitly mentioned by Hon'ble Apex Court that the steps taken by ld. Magistrate U/s 190(1) (a) of Cr.P.C followed by Section 204 Cr.P.C. should reflect that the learned Magistrate has applied his judicial mind to the facts, statements of the witnesses and he is satisfied that there is grounds for proceed further in the matter by asking the persons against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaints would constitute an offence and when considered alongwith statements recorded would prima facie makes the accused answerable. The Magistrate should not act as a post office in taking cognizance in each and ever complaint filed before him and issue process as a matter of a course. There must be a sufficient indication in the order passed by Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and in result of enquiry or report of investigation U/s 202 of Cr.P.C, if any, the accused is answerable before the court there is ground for proceeding against the accused U/s 204 Cr.P.C by issuing processes for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where Magistrate is proceeding U/s 190/204 Cr.P.C the High Court U/s 482 Cr.P.C is bound to invoke its inherent powers to prevent the abuse of powers of the Criminal Courts to call an accused, is a serious matter affecting one's dignity self-esteem and respect hence the process of Crl. Court should not be make weapon of harassment.
On the similar pattern in the case of Vijay Dhanuka V. Najima Mamtaz AIR 2014 SC (suppli;), 756, the relevant paragraph no. 12 is quoted herein below :
"12:- The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word shall is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word shall in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression shall and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate. In view of the decision of this Court in the case of Udai Shankar Awasthi V. State of U.P. (2013) 2 SCC 435, this point need not detain us any further as in the said case, this Court has clearly held that provision aforesaid is mandatory. It is apt to reproduce the following passage from the said judgment.
40. The Magistrate had issued summons without meeting the mandatory requirement of Section 202, Cr.P.C, thought the appellants were outside his territorial jurisdiction. The provisions of Section 202, Cr.P.C. were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in a area beyond the territorial jurisdiction of the Magistrate concerned. The same was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the Magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other persons as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases."
The next question for consideration is, what does "enquiry" means. The expression has been defined in Section 2(g) of the Code, which means, every enquiry, other than trial, under this code by a Magistrate or "Court." It is evident from the aforesaid provision, every enquiry other than trial conducted by Magistrate or a court is an enquiry, no specific mode or manner is provided viz; 201(1) Cr.P.C. The enquiry envisage U/s 202 Cr.P.C., the witnesses are examined whereas U/s 200 Cr.P.C. examination of complainant is necessary with the option of examining of witnesses present, if any. This exercise by the Magistrate with the sole objective and purpose for deciding whether or not there is sufficient grounds for proceeding against an accused, is nothing but an enquiry envisage U/s 202 Cr.P.C. The under-line idea is that, before exercising power U/s 203/204 Cr.P.C. it is incumbent upon the Magistrate to took into the allegations made in the complaint, statements recorded U/s 200, 202 Cr.P.C. and if there are witnesses to the incident, then take the help of those witnesses while arriving to a particular conclusion. There cannot be a straight jacketed design or formula in holding the enquiry.
In the instant case, if the court compares the summoning order, it is evident that the learned Magistrate has relied upon the statement of Dr. B.D. Sharma/P.W.-3, whereby it has been opined by him that the proposed accused has inflicted weapon upon the head, causing a head injury which may lead to demise of the injured Pradeep Kumar Yadav. The learned counsel for the applicants has seriously questioned the validity of injury report issued by District Hospital, Saharanpur (Annexure No.20 of the petition). From the injury report, it is clear that on 25.12.2016 at 8.40 A.M., the injured was admitted in the hospital and at 9.10 P.M. he was discharged. It was strenuously asserted by learned counsel for the applicants that in this short span of time injuries of Section 307 I.P.C. cannot be examined. I am afraid to accept this contention of learned counsel. For assessing the gravity of any injury the weapon used, seat of injury, its dimension are relevant. Time of dressing is not at all relevant. Even a lethal blow could be inflicted by an article on the vital part of body which could be dressed within short span of time. It would not mitigate the gravity of offence. On this premises alone I do not find any irregularity or abnormality in the injury report. However, the learned Magistrate has got no mechanism at the stage of summoning to check the veracity of a particular document/injury report. The fact finds force when the Dr. B.D. Sharma/PW-3 in no uncertain terms in his deposition as PW-3 categorically opined that the injured has sustained a lacerated wound of 2.5 x 0.5 c.m. bone deep over the skull, above the right ear and the blood was oozing out in the said injury and was advised X-ray. Secondly, red abrasion measuring 5.0 x 2.0 cm over the right chest and according to doctor, all the injuries would be sustained by a iron rod or saria. The injury no.1 could be caused by some sharp edged weapon or iron rod or saria, rest of the injuries were simple in nature. This fact fully corroborates the prosecution story. Needless to mention here that the learned lower revisional court while allowing the revision dated 31.05.2019, has directed the learned Magistrate to record the deposition of all the witnesses and accordingly, the statement of Youddhvir Singh as PW-4 and Sushil Jain as PW-5 were penned down. It is contended that the statements of these two persons surfaced for the first time in second innings and prior to that there was no whisper regarding their presence over the site. No doubt that for the offences triable by the Sessions, the requirement of law is to summon all the prosecution witnesses to examine in the court. The presence of these witnesses could be disputed during trial and this ground is not sufficient to upset the summoning order.
The learned A.G.A. again has drawn the attention of the Court in the judgment of ABHIJIT PAWAR VS. HEMANT MADHUKAR NIMBALKAR AND ANOTHER (2017) (3) SC, 528, which too has toe the chain of earlier judgments. As mentioned above, no specific mode and manner is prescribed to conduct the enquiry by the Magistrate. If the Magistrate after holding this matter of exercise is prima-facie satisfy that the accused/applicants are committed the offence punishable U/s 323, 324, 307, 506 I.P.C. and for issuing summons U/s 204 Cr.P.C. and while doing so he has spelled out the reasons for his satisfaction/conclusion relying upon the statements of the doctor. The prosecution case, whereby the accused persons were assailants who caused the lethal and grievous injuries over the skull of the injured, which could have caused his death, if the timely treatment was not given. I find that the learned Magistrate has achieved the target and the order impugned is a well reasoned order whereby he has spelled out the reasons of satisfaction, which corroborates the prosecution story. At the stage of summoning he is not required to give sound and detailed reason and the depositions of thrashing each and every prosecution witness in depth. In my opinion, the learned Magistrate has 'enquired' into the matter as contemplated in Section 202(1) Cr.P.C. and passed sufficiently reasonable summoning order. For the aforesaid reasons and circumstances, the present 482 application falls flat and do not warrant any interference U/s 482 Cr.P.C. and accordingly dismissed.
It is given to understand that the applicants have not surrendered till date. The applicants are directed to appear before the court concerned on or before 30th July, 2020 and seek bail, during this period no coercive action shall be taken against them.
Dated : 14 May, 2020 M. Kumar