Allahabad High Court
Praveen Rawat vs State Of U.P. And Another on 21 August, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:133683 Court No. - 64 Case :- APPLICATION U/S 482 No. - 20617 of 2024 Applicant :- Praveen Rawat Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mahendra Pratap Counsel for Opposite Party :- G.A.,Kuldeep Kumar Hon'ble Samit Gopal,J.
1. Heard Sri Mahendra Pratap, learned counsel for the applicant, Sri Kuldeep Kumar, learned counsel for the opposite party no.2 and Sri Arvind Kumar, learned counsel for the State and perused the records.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant- Praveen Rawat, with the prayer to allow the present application and quash the entire proceeding as well as summoning order dated 20.11.2021, B.W. dated 04.03.2022 & N.B.W. dated 22.03.2022 in Complaint Case No. 11969 of 2021 (Dharmender Vs. Hari Narayan Rajbhar and 4 others) renumbered as Complaint Case no. 310 of 2023, under Sections 420, 406, 467, 468, 471 and 120-B I.P.C., Police Station Kotwali Dehat, District Bulandshahar, pending in the court of Additional Chief Judicial Magistrate / Special Court M.P. / M.L.A., Anoopsaher, Bulandshahar, with a further prayer that proceedings of the aforesaid case be stayed during the pendency of the present application.
3. At the very outset, learned counsel for the applicant submits that in so far as the impugned summoning order dated 20.11.2021 is concerned, the same was also challenged by co-accused Hari Narayan Rajbhar and Atal Rajbhar before this Court in Application U/S 482 No. 11171 of 2023 (Hari Narayan Rajbhar and another vs. state of U.P. and another) in which a co-ordinate Bench of this Court vide order dated 04.07.2024 allowed the said petition, quashed the said summoning order dated 20.11.2021 and remitted the matter back to the court concerned for deciding it afresh in the light of the observations made therein. The necessary exercise was directed to be undertaken by the court concerned within a period of two months from the date of production of a certified copy of the said order, the copy of the said order has been produced before the Court which is taken on record. It is submitted that since the summoning order which is a common order by which the applicant has also been summoned has been set-aside, the applicant is also entitled to the same relief. It is submitted that the order dated 04.07.2024 has attained finality till date.
4. Learned counsel for the opposite party no.2 does not dispute the fact that till date the said order has attained finality and also regarding directions given therein in paragraph 27 and 28.
5. Learned counsels for the parties did not dispute the fact that the order summoning dated 20.11.2021 which was the impugned order in the petition of co-accused is also the order impugned in the present petition. It is submitted that since a co-ordinate Bench of this Court has taken a view and the said order has been set-aside, the applicant may be extended the same benefit.
6. Heard learned counsels for the parties and perused the records.
7. A co-ordinate Bench of this Court vide order dated 04.07.2024 in Application U/S 482 No. 11171 of 2023 (Hari Narayan Rajbhar and another vs. state of U.P. and another) has passed the following order:-
"1. Heard Mr. Suneel Kumar along with Mr. Amar Nath Singh, the learned counsel for applicants, the learned A.G.A. for State and Mr. Kuldeep Kumar, the learned counsel representing first informant/opposite party-2.
2. Perused the record.
3. This application under section 482 Cr.P.C. has been filed by accused-applicants-Hari Narayan Rajbhar and Atal Rajbhar challenging the summoning order dated 20.11.2021, passed by Civil Judge (Junior Division)/Judicial Magistrate, Bulandshahr, in Criminal Complaint Case No. 11969 of 2021 (Dharmendra Singh Vs. Hari Narayan Rajbhar and Others) under sections 420, 406, 467, 468, 471, 120B IPC, Police Station- Kotwali, Dehat, District- Bulandshahar, whereby accused-applicants have been summoned by Court below in aforementioned complaint case as well as the entire proceedings of aforesaid complaint case now pending in the Court of Ist Civil Judge (Junior Division)/Judicial Magistrate, Bulandshahr.
4. Record shows that a complaint dated 8.10.2021 was filed by the complainant/opposite party-2 Dharmendra Singh, alleging therein that the accused have cheeted the complainant to the tune of Rs. 22,00,000/-.
5. After aforementioned complaint was filed, concerned Magistrate proceeded with the same. He, accordingly, recorded the statement of complainant, under section 200 Cr.P.C. on 18.01.2021. This was followed by the statements of witnesses i.e. P.W.1 and P.W.2, which were recorded, under section 202 Cr.P.C. on 26.10.2021, respectively. On the basis of above, concerned Magistrate examined the veracity of the allegations made in the complaint and on basis thereof, came to the conclusion that prospective accused are liable to be summoned to face trial. Accordingly, Court below i.e. Civil Judge (Junior Division)/Judicial Magistrate, Bulandshahar passed the summoning order dated 20.11.2021, whereby applicants have been summoned in Case No. 11969 of 2021 (Dharmendra Singh Vs. Hari Narayan Rajbhar and Others), under sections 420, 406, 467, 468, 471, 120B IPC to face trial in aforesaid complaint case.
6. Thus feeling aggrieved by the above summoning order dated 20.11.2021, passed by Court below as well as the entire proceedings of aforementioned complaint case, accused-applicants have now approached this Court by means of present application under Section 482 Cr.P.C.
7. Present application came up for admission on 7.4.2023 and this Court passed the following order:
"Heard learned counsel for the applicants, learned AGA for the State, Shri Kuldeep Kumar, learned counsel for the opposite party no.2 and perused the record.
Learned counsel for the opposite party no.2 prays for and is granted three weeks' time to file counter affidavit.
List on 28.04.2023. "
8. In compliance of above order dated 7.4.2023, affidavits have been exchanged between the parties.
9. Mr. Suneel Kumar along with Mr. Amar Nath Singh, the learned counsel for applicants submits that order impugned dated 20.11.2021, passed by Court below, whereby applicants have been summoned in above mentioned complaint case is illegal being in excess of jurisdiction. Consequently, same is liable to be set aside by this Court. In furtherance of aforesaid submission, it is urged by learned counsel for applicant that from perusal of the impugned order passed by Court below, it is explicitly clear that Court below has simply narrated the allegations made in complaint, followed by the statement of fact that statements of the complaint and that of his witnesses have been recorded under sections 200 and 202 Cr.P.C. and on basis thereof, has recorded a bald conclusion that applicants, who are prospective accused, are liable to be summoned to face trial.
10. In the submission of learned counsel for applicants, no attempt was made by Court below to record it's satisfaction on the complaint made by complainant nor the allegations made in the complaint have been examined in the light of statements of the complainant and that of his witnesses to find out the veracity of the allegations made in the complaint. As such, no prima-facie satisfaction was recorded by Court below qua the allegations made in the complaint. On the above premise, it is thus urged by the learned counsel for applicant that the impugned summoning order is not only illegal but also arbitrary and therefore the same cannot be sustained. Consequently same is, therefore, liable to be set aside by this Court.
11. In support of above submission, he has relied upon the judgement of this Court in Mahboob and others vs. State of U.P. and another, reported in 2016 SCC Online (All) 4468. Reliance is placed upon paragraphs 8, 9, 10, 11 of the aforesaid report and accordingly, the same is reproduced hereinunder:
"8 In Mehmood UI Rehmand vs. Khazir Mohammad Tund (2016) 1 SCC (Cri) 124; 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 [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.
22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person 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 complaint would constitute an offence, and when considered along with the statements recorded, would prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. 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 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. 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. Hence, the process of criminal court shall not be made a weapon of harassment." Emphasis added. "
9. 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."
10. 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 CrPC. 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.
11. 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."
12. It is next contended by the learned counsel for applicants that from perusal of complaint filed by complainant/opposite party-2, copy of which is on record as Annexure-1 to the affidavit, it is apparent that the prospective accused i.e. the applicants herein are residents of another District, which is beyond the territorial jurisdiction of Court below.
13. Referring to the provisions contained in Section 202 Cr.P.C, the learned counsel for applicants contends that in view of above, Court below was under a legal obligation to conduct an inquiry qua the allegations made in the complaint before summoning the accused-applicants. For ready reference Section 200/202 Cr.P.C. are reproduced herein under:
200 Cr.P.C.
Complaints To Magistrates- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses,
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
202 Cr.P.C
202. Postponement of issue of process- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised 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 exercises 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 Sessions; 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.
(2) In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3)If an investigation under Sub-Section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
14. However, according to the learned counsel for applicant, it is apparent from the order impugned that no such enquiry as contemplated under Section 202(1) Cr.P.C. was conducted by Court below before passing the impugned summoning order dated 20.11.2021. Consequently, the order impugned in present application is illegal. As such, same is liable to be set aside by this Court.
15. Placing reliance upon the judgement of Supreme Court in National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488, the learned counsel for applicants contends that Court below was under a legal obligation to conduct an enquiry qua the present applicants in the manner provided under Section 202(1) Cr.P.C. before summoning them. However, from the order impugned, it cannot be inferred that any such enquiry as detailed above, was conducted by Court below. Much emphasis was laid on paragraphs 7,8, 9,10,11 of the report and therefore, the same are extracted herein under:-
"7. The High Court took the view that prima facie the bare allegation of cheating did not make out a case against the accused for issuance or process under Section 418 of 420 of the I.P.C. Further, it was held that the C.J.M. did not follow the procedure laid down under Section 202 of the Cr.P.C. The High Court held that the Magistrate was obliged to postpone the process against the accused and either enquire the case himself or direct an investigation to be made by a police officer or by such other officer as he thinks fit for the purpose of deciding whether or not there is sufficient grounds for proceeding in a case where the accused is residing beyond the area in which the Magistrate exercises his jurisdiction. The High Court noticed that the accused is a resident of District Dakshin Kannada, Karnataka and hence, the CJM should have followed the procedure laid down in Section 202 Cr.P.C. The High Court, therefore, set aside the order dated 25.2.2011 issuing the process under Sections 418 and 420 of the I.P.C. by the C.J.M. Ahmednagar. Aggrieved by the said order the Bank has come up with this special leave petition.
8. We find no error in the view taken by the High Court that the C.J.M. Ahmednagar had not carried out any enquiry or ordered investigation as contemplated under Section 202 of the Cr.P.C. before issuing the process, considering the fact that the respondent is a resident of District Dakshin Kannada, which does not fall within the jurisdiction of the C.J.M. Ahmednagar. It was, therefore, incumbent upon him to carry out an enquiry or order investigation as contemplated under Section 202 of the Cr.P.C. before issuing the process.
9. The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Cr.P.C. is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint ?
(i) on the materials placed by the complainant before the Court
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made our; and
(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.
10. Section 202 of the Cr.P.C. was amended by the Cr.P.C. (Amendment Act 2005) and the following words were inserted:
"and shall, in a case where the accused is residing at a place beyond the area in which he exercises jurisdiction"
The notes on clauses for the above-mentioned amendment read as follow:
"False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused." The amendment has come into force w.e.f. 23.6.2006 vide notification No.S.O.923(E) dt. 21.6.2006.
11. We are of the view that the High Court has correctly held that the above-mentioned amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. "
16. On the above premise, learned counsel for applicants thus contends that order impugned cannot be sustained in law and fact. Consequently, the same is liable to be set aside. As such, the present application be allowed.
17. Per contra, the learned A.G.A. and Mr. Kuldeep Kumar, the learned counsel representing first informant have vehemently opposed this application. According to the learned A.G.A., the impugned summoning order passed by Court below, whereby applicants have been summoned to face trial under Sections 420, 406, 467, 468, 471 and 120-B IPC is perfectly just and legal. Consequently, the same is not liable to be interfered with by this Court. In the submission of the learned A.G.A., Court below has duly followed the procedure provided in the Code (Cr.P.C.) regarding trial of an accused is a complaint case. Court below, after recording the statements of the complainant and his witnesses under Sections 200 and 202 Cr.P.C., has come to the conclusion that a prima-facie case is made out against the accused. Consequently, Court below has rightly summoned the accused-applicants by means of the impugned summoning order. Once the allegation made in the complaint were examined by Court below in the light of the statements of the complainant and that of his witnesses, no further enquiry in the mater was required. In view of above, it cannot be said that Court below has summoned the accused-applicants without recording it's prima-facie satisfaction regarding the veracity of the allegations made in the complaint. As such, no interference is warranted by this Court in present application under section 482 Cr.P.C.
18. Mr. Kuldeep Kumar, the learned counsel representing first informant-opposite party-2 has adopted the arguments raised by the learned A.G.A. in opposition to the present application. In addition to above, he submits that the law laid down by Apex Court in National Bank of Oman (Supra) is no longer a good law. The same has been distinguished in the subsequent judgments of Apex Court in Uday Shankar Awasthi Vs. State of U.P., (2013) 2 SCC 435 and Vijay Dhanuka and Others Vs. Najima Mamtaj and Others, (2014) 14 SCC 638.
19. It is then submitted that a learned Single Judge of the Lucknow Bench of this Court in Hemant Tiwari and Others Vs. State of U.P. and Others, 2021 SCC OnLine All 916, has considered the judgment of the Supreme Court in National Bank of Oman (Supra) as well as the subsequent judgments of the Supreme Court as noted herein above. Upon consideration and evaluation of the law laid down therein, the Bench has ultimately, opined as follows in paragraphs 10, 11, 12 and 13 of the report:-
"10. Having heard learned counsel for the parties and having perused the material available on record, I find that the Apex Court in re: Vijay Dhanuka (supra) has set at rest the controversy in question vide para 13 to 16 thereof. For the convenience paras no. 13 to 16 are being reproduced herein below :
"13. In view of the decision of this Court in the case of Udai Shankar Awasthi v. State of Uttar Pradesh, (2013) 2 SCC 435, this point need not detain us any further as in the said case, this Court has clearly held that the 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 CrPC, though the appellants were outside his territorial jurisdiction. The provisions of Section 202 CrPC were amended vide the Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an 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 person 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."
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 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 202 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 the 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.
15. In the present case, as we have stated earlier, the Magistrate has examined the complainant on solemn affirmation and the two witnesses and only thereafter he had directed for issuance of process.
16. In view of what we have observed above, we do not find any error in the order impugned. In the result, we do not find any merit in the appeals and the same are dismissed accordingly."
11. In para 13 the Apex Court has considered the earlier dictum of Apex Court in re: Uday Shankar Awasthi (supra) wherein the amended section 202 Cr.P.C. has been interpreted, therefore, the Apex Court has taken cognizance of the amended portion of section 202 Cr.P.C. Vide para 14 the Apex Court has interpreted the term 'Inquiry' as defined u/s 2(g) of the Code, noticing the fact that no specific mode or manner of inquiry is provided u/s 202 Cr.P.C. of the Code, therefore, as per the Apex Court in the inquiry mandated u/s 202 Cr.P.C. would mean the examination of the complainant and examination of the witnesses. After the aforesaid examination, obviously the same would have been made on the solemn affirmation, that exercise would be sufficient to understand that, that is the inquiry as mandated u/s 202 Cr.P.C.
12. The Apex Court in para 15 and 16 of the aforesaid judgment has clearly observed that the Magistrate has examined the complaint on solemn affirmation of the two witnesses and only thereafter he had directed for issuance of process, therefore, there is no error in such order.
13. In the present case the impugned order dated 31.5.2019 clearly reveals that such order has been issued after examination of the complainant u/s 200 and examination of witnesses namely Nitin Srivastava, Sushil Awasthi, Rajat Kishor Mishra and Haseeb Siddiqui u/s 202 Cr.P.C. Therefore, there is no infirmity or illegality in the impugned order dated 31.5.2019. Besides, the sections for which the petitioners have been summoned i.e. 500 and 501 IPC are triable by the sessions, therefore, the prior direction for investigation could have not been issued by the Magistrate in view of the first proviso of section 202(1) Cr.P.C. "
20. On the above premise, it is thus urged by the learned counsel representing complainant-opposite party-2 that the impugned summoning order was passed by court below after recording its satisfaction regarding the veracity of the allegation made in the complaint on the basis of the statement of complainant and that of his witnesses examined under sections 200 and 202 Cr.P.C. Thus no further enquiry was required in law. As such, no illegality has been committed by Court below in passing the order impugned. In view of above, no question of law or fact arises for determination in present application under Section 482 Cr.P.C. Thus, no good ground for interference by this Court is made out. As such, present application is liable to be rejected.
21. Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing complainant-opposite party-2, upon perusal of record and the submissions urged before this Court as noted above, this Court finds that following two questions arise for consideration in this application under Section 482 Cr.P.C:-
(i) Whether in the facts and circumstances of the case, it can be conclusively concluded that Court below has summoned the present applicants after recording its prima-facie satisfaction on the allegations made in the complaint?
(ii) Whether in view of the fact that prospective accused i.e. applicants herein are residents of another District, which is beyond the territorial jurisdiction of Court below, therefore, an enquiry qua the allegations made in the complaint ought to have been got conducted before summoning the prospective accused i.e. the applicants herein in the light of law laid down by Apex Court in National Bank of Oman (Supra)?
22. The first issue is taken first. Upon perusal of the order impugned, this Court finds that the order impugned comprises of five paragraphs. The first paragraph records that counsel for the complainant has been heard on the summoning of accused, the second paragraph records the genesis of the complaint, the third paragraph takes note of the fact that the statement of complaint and his witnesses have been recorded under sections 200 and 202 Cr.p.C. and also the fact that documentary evidence has also been filed by complainant, the fourth paragraph describes the fact that the counsel for complainant was heard and the record was perused and in the last paragraph, Court below has recorded a bald conclusion that the complainant and his witnesses have supported the complaint and therefore, the prospective accused i.e. applicants herein are liable to be summoned to face trial in above mentioned complaint case.
23. There is noting in the order impugned to indicate as to how the allegations made in the complaint stand supported in the statement of the complainant and that of his witnesses recorded under sections 200 and 202 Cr.P.C. as well as the evidence on record to show that complainant was cheated for a sum of Rs. 22 lacs. There is absolutely no discussion qua the same in the order impugned either. As such, the opinion drawn by Court below that the prospective accused are liable to be summoned in aforementioned complaint case is a bald conclusion inasmuch as, no prima facie satisfaction has been recorded by Court below regarding the veracity of the allegations made in the complaint. It is by now well settled that summoning of an accused in a criminal case is not an ordinary thing and therefore, Courts are required to exercise care, caution and circumspection while passing the summoning order. Refernce in this regard be made to the following judgments:-
(i). Smt. Shiv Kumar and Others Vs. State of U.P. and Another, 2017 SCC OnLine All 4858.
(ii). Hariram Verma and 4 Others Vs. State of U.P. and Another, 2016 SCC OnLine All 583,
(iii). M/s Pepsi Food Ltd. And Another Vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749,
(iv). Paul George Vs. State, (2002) 2 SCC 406,
(v). S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla, (2005) 8 SCC 89,
(vi). Anita Malhotra Vs. Apparel Export Promotion Council, (2012) 1 SCC 520.
24. So far as the second question is concerned, the same does not require in depth analysis/adjudication in view of the authoratative pronouncement of the Supreme Court in the case of Vijay Dhanuka (Supra).
25. In view of the discussion made above, the present application succeeds and is liable to be allowed.
26. It is, accordingly, allowed.
27. The impugned summoning order dated 20.11.2021, passed by Civil Judge (Junior Division)/Judicial Magistrate, Bulandshahr, in Criminal Complaint Case No. 11969 of 2021 (Dharmendra Singh Vs. Hari Narayan Rajbhar and Others) under sections 420, 406, 467, 468, 471, 120B IPC, Police Station- Kotwali, Dehat, District- Bulandshahar is, hereby, set aside.
28. The matter shall stand remitted to Court below for decision afresh in the light of observations made herein above. The necessary exercise shall be undertaken by Court below within a period of two months from the date of presentation of a certified copy of this order.
29. Considering the facts and circumstances of the case, the cost is made easy."
8. The prayer in the said petition which has been allowed and the present petition is the same. The applicant also has been summoned by means of the same summoning order dated 20.11.2021 which has been set-aside by a co-ordinate Bench of this Court vide order dated 04.07.2024.
9. Thus in view of the facts and keeping consistency in the decision of Courts, it is provided that the present petition is also allowed. The directions given in paragraph 27 & 28 of the order dated 04.07.2024 shall also be extended to the applicant but the time of two months as given therein shall remain the same from the date of production of the said order.
10. The applicant may file the order within a period of one week from today before the court concerned.
Order Date :- 21.8.2024 AS Rathore (Samit Gopal,J.)