Suresh Yadav And 6 Ors. vs State Of U.P. And Another on 19 November, 2020

[Cites 15, Cited by 1]

Allahabad High Court

Suresh Yadav And 6 Ors. vs State Of U.P. And Another on 19 November, 2020

Bench: Ravi Nath Tilhari





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 85
 

 
Case :- APPLICATION U/S 482 No. - 12480 of 2020
 

 
Applicant :- Suresh Yadav And 6 Ors.
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Chandra Kumar Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ravi Nath Tilhari,J.

1. Heard Shri Chandra Kumar Rai, learned counsel for the applicants and learned A.G.A. for the State.

2. The applicants have filed this petition under Section 482 Code of Criminal Procedure to quash the summoning order dated 28.02.2019 passed by learned Additional Chief Judicial Magistrate Court No. 10 Azamgarh in Complaint Case No. 10833 of 2018 whereby the applicants have been summoned under Section 452, 323, 504, 506, 354-A I.P.C.

3. The facts of the case as per the application are that the present opposite party no. 2 filed an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned, on 09.03.2016, with respect to the incident dated 08.02.2016, with the allegations that the applicants on the date of incident came to her house and tried to get possession thereof, they committed marpeet and also molested her. The Magistrate treated the application as a complaint case. The statement of the opposite party no. 2 was recorded on 02.09.2016 and the statement of the witnesses were recorded under Section 202 Cr.P.C. on 29.10.2018. Thereafter, learned Magistrate passed the summoning order dated 28.02.2019 under Sections mentioned above, which is under challenge.

4. The learned counsel for the applicants submits that the summoning order has been passed mechanically and in a routine manner without application of judicial mind to the material on record which consideration is not reflected in the order at all. Further submission is, that the criminal proceedings have been initiated due to malafide and are abuse of the process of law, as the husband of the opposite party no. 2 filed a civil suit no. 2042 of 2015 (Vinod Kumar versus Rajeshwari Devi) against the mother of applicant nos. 3 and 4 for permanent injunction which is pending in the court of Civil Judge (Junior Division) Haveli Azamgarh in which any temporary injunction was not granted. He further submits that the applicant no. 3 had filed a complaint against the husband of opposite party no. 2 and some other persons with respect to an incident dated 19.02.2016 in which the applicant no. 3 and the wife of applicant no. 4 had sustained injuries.

5. Learned A.G.A. appearing for the State could not dispute the legal position that the summoning order must be passed on consideration of the material on record and such consideration must also be reflected in the order. However, he submits that the Magistrate being satisfied, on the basis of the material available before him that prima facie case for summoning of the accused persons was made out, has passed the summoning order which does not suffer from any illegality.

6. I have perused the material on record and considered the submission as advanced by learned counsel for the applicants and the learned A.G.A.

7. Considering the order proposed to be passed the notice to the private opposite party no. 2 is dispensed with. This Court finds that purely legal question is involved. The order under challenge suffers from patent error of law for the reasons to be recorded hereinafter, and staying the operation of the order and keeping the petition pending, would not be in the interest of the private opposite party no. 2 as the same would delay the proceedings of the Criminal Case. This petition is therefore being disposed of finally after hearing counsel for the applicants and learned A.G.A.

8. In Birla Corporation Ltd. Versus Adventz Investments And Holdings reported in (2019) 16 SCC 610, the Hon'ble Supreme Court has held that summoning of an accused in a criminal case 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 an 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. While ordering issuance of process against the accused the Magistrate must take into consideration the averments of the complaint, statement of the complainant and the witnesses examined. It is a process of taking judicial notice of certain facts which constitute an offence and it is not a mechanical process.

9. In Birla Corporations (supra) the Hon'ble S.C. has held in paragraph nos. 26, 30, 31, 36, 55, 56, 59 & 61 of Birla Corporations (supra) as under:

"26. Complaint filed under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process:- Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused.

30. Reiterating the mandatory requirement of application of mind in the process of taking cognizance, in Bhushan Kumar and Another v. State (NCT of Delhi) and Another (2012) 5 SCC 424, it was held as under:-

"11. In Chief Enforcement Officer v. Videocon International Ltd.

(2008) 2 SCC 492 (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means ''become aware of' and when used with reference to a court or a Judge, it connotes ''to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code."

31. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.

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. 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.

55. While ordering issuance of process against the accused, the Magistrate must take into consideration the averments in the complaint, statement of the complainant examined on oath and the statement of witnesses examined. As held in Mehmood Ul Rehman, since it is a process of taking a judicial notice of certain facts which constitute an offence, there has to be application of mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceeding against the accused. It is not a mechanical process.

56. As held in Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and Another AIR 1963 SC 1430 and in a series of judgments of the Supreme Court, the object of an enquiry under Section 202 Cr.P.C. is for the Magistrate to scrutinize the material produced by the complainant to satisfy himself that the complaint is not frivolous and that there is evidence/material which forms sufficient ground for the Magistrate to proceed to issue process under Section 204 Cr.P.C. It is the duty of the Magistrate to elicit every fact that would establish the bona fides of the complaint and the complainant.

59. As held in Pepsi Foods Limited, summoning the accused for a criminal offence is a serious matter and the respondents are answerable in the criminal court. The non-application of mind as to the materials cannot be brushed aside as a procedural irregularity. There is no indication in the order of the Magistrate dated 08.10.2010 as to application of the mind and as to the satisfaction of the Magistrate as to the sufficient ground for proceeding against the respondents under Sections 380, 411 and 120-B IPC.

61. The object of investigation under Section 202 Cr.P.C. is "for the purpose of deciding whether or not there is sufficient ground for proceeding". The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. As discussed earlier, issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity. In the present case, the satisfaction of the Magistrate in ordering issuance of process to the respondents is not well founded and the order summoning the accused cannot be sustained. The impugned order of the High Court holding that there was compliance of the procedure under Section 202 Cr.P.C. cannot be sustained and is liable to be set aside. Production of copies of documents in the Company Petition - whether would amount to theft:"

10. In "Anil Kumar versus M.K. Aiyappa and another (2013) 10 SCC 705 the Hon'ble Supreme Court also examined if the Magistrate, while exercising powers under Section 156 (3) Cr.P.C. could act in a mechanical or casual manner and go on with the complaint after getting the reports and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind and the application of mind by the Magistrate should be reflected in the order. The Mere statement that he had gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.

11. In Ramdev Foods Product Pvt. Ltd. versus State of Gujarat (2015) 6 SCC 439 , the Hon'ble S.C. held as under in paragraph no. 20 "20. It has been held, for the same reasons, that direction by the Magistrate for investigation under Section 156(3) cannot be given mechanically. In Anil Kumar vs. M.K. Aiyappa[5], it was observed :

"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."

12. From perusal of the summoning order, it is apparent that the Magistrate has not considered neither the submission of the complainant nor the witnesses before passing the summoning order. The order does not manifest conscious consideration of the material on record. There is mention that the Magistrate on perusal of the statement of the complainant and of the witnesses was prima facie satisfied that the case for summoning the applicants was made out, however, any such consideration is not manifested from the order. Mere mention that the Magistrate perused those statements, in the view of this Court, is not sufficient and is no compliance of the requirement of the process of taking judicial notice of facts if they constitute an offence or not for summoning.

13. Thus considered, the order under challenge cannot be sustained and deserves to be set aside with direction to the Magistrate to pass fresh orders in accordance with law after affording opportunity of hearing to the complainant/opposite party no. 2 with due notice to the complainant.

14. The order under challenge is set aside. The matter is remitted to the Magistrate concerned to decide the complaint afresh for passing orders in accordance with law, in the light of observations made in this judgment, expeditiously, say within a period of three months from the date of production of copy of the order of this judgment before him, after affording opportunity of hearing to the complainant/opposite party no. 2, on the point of summoning of the accused persons.

15. The petition is partly allowed with the aforesaid observations and directions.

16. No orders as to cost.

Order Date :- 19.11.2020 SY Court No. - 85 Case :- APPLICATION U/S 482 No. - 12480 of 2020 Applicant :- Suresh Yadav And 6 Ors.

Opposite Party :- State of U.P. and Another Counsel for Applicant :- Chandra Kumar Rai Counsel for Opposite Party :- G.A. Hon'ble Ravi Nath Tilhari,J.