Uttarakhand High Court
Divya Nautiyal vs State Of Uttarakhand & Another on 8 December, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No.1334 of 2021
Divya Nautiyal .....Applicant
Vs.
State of Uttarakhand & Another .....Respondents
With
Criminal Misc. Application No.712 of 2021
Divya Nautiyal & Others .....Applicants
Vs.
State of Uttarakhand & Another .....Respondents
Criminal Misc. Application No.554 of 2022
Divya Nautiyal .....Applicant
Vs.
State of Uttarakhand & Another .....Respondents
Criminal Misc. Application No.555 of 2022
Divya Nautiyal .....Applicant
Vs.
State of Uttarakhand & Another .....Respondents
Criminal Misc. Application No.2135 of 2022
Divya Nautiyal .....Applicant
Vs.
State of Uttarakhand & Another .....Respondents
Advocate: Mr. R.P. Nautiyal, Senior Advocate assisted by Ms. Garima Thapa, Advocate and Mr.
Pavan Kumar Nath, Advocate for the applicants.
Mr. Atul Kumar Shah, Deputy Advocate General for the State of Uttarakhand.
Mr. Raman Kumar Shah, Advocate for respondent no.2 in C482 No.1334 of 2021.
Mr. K.K. Tiwari, Advocate for respondent no.2 in C482 No.555 of 2022.
2
Hon'ble Sharad Kumar Sharma, J.
These are set of five C-482 Applications, the precise details of each of them are given hereunder:-
2. In C-482 Application No.1334 of 2021 the challenge as given by the present applicant, is to the Charge Sheet No.5 of 2021 dated 05.02.2001, and the consequential summoning order dated 27.07.2001, as it was rendered by the court of Judicial Magistrate, Nainital in Criminal Case No.237 of 2001, State vs. Manoj Prabhakar and others, whereby the present applicant has been summoned to be tried for the offence under Sections 406 and 420 of IPC.
3. In C-482 Application No.712 of 2021 the applicants have put a challenge to the Charge Sheet No.4A of 2002 dated 26.08.2003 and the consequential summoning order which was issued by the court of Chief Judicial Magistrate, Tehri Garhwal on 07.02.2004 in Criminal Case No.322 of 2004 State of Uttarakhand vs. Divya Nautiyal and others, whereby the learned trial court has taken cognizance for the offence under Sections 420, 467, 468 and 471 of IPC, in a proceedings, which are pending before the court of Chief Judicial Magistrate, Tehri Garhwal.
4. In C-482 Application No.554 of 2022 the challenge as given by the present applicant is to the Charge Sheet No.16 of 2001 dated 21.01.2001, the summoning order dated 13.08.2001 as well as the consequential proceedings of Criminal Case No.4404 of 2013 State vs. Manoj Prabhakar & Another, whereby the applicant has summoned for being tried for the offence under Sections 406, 420 and 471 of IPC, in a proceedings, which are pending before the court of Additional Chief Judicial Magistrate, Haldwani, District Nainital.
5. In C-482 Application No.555 of 2022 the applicant has put a challenge to the Charge Sheet No.15 of 2001 dated 21.01.2001 and the summoning order dated 13.08.2001, as it has been issued by the court of Judicial Magistrate, Nainital in Criminal Case No.4406 of 2013 State vs. Manoj Prabhakar & Another, whereby the cognizance have been taken for the offence under Sections 406, 420 and 471 of IPC for which the present applicant has been 3 summoned by the court of Additional Chief Judicial Magistrate, Haldwani District Nainital.
6. In C-482 Application No.2135 of 2022 the challenge given by the applicant is to the Charge Sheet No.05 of 2002 dated 16.06.2002, the summoning order dated 25.03.2003 as rendered by the Judicial Magistrate II, Haridwar in Criminal Case No.2576 of 2014 State vs. Divya Nautiyal & others, whereby the applicant has been summoned for being tried for the offence under Section 406, 420 and Section 418 of IPC.
7. There are various intricate questions, which could have been ventured into by this Court, had there been a proper assistance given by the battery of counsels, who were engaged to address the respective C-482 Applications. But this Court feels sorry to observe that instead of enabling the Court to be assisted on the legal question, the counsels have ultimately confined their arguments from a very limited prospective with regards to the nature of the summoning order, which has been respectively issued in each of the connected C-482 applications.
8. The arguments which has been extended by the counsel for the applicants, which is invariably quite common in almost all the C-482 applications where the summoning orders, are put to challenge, that the summoning orders happens to be without application of mind which at this stage of the legal scenario, is not a question, which at all was required to be judicially debated upon by the courts because it is otherwise too a settled principal of law that at the stage of summoning of an accused person, the trial court has had to apply its mind in order to justify the necessity of summoning the accused persons, as to whether they should be summoned for the purposes of trying or not and that is why the wider principles had been laid down by the judgment of Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and Another as reported in (1998) 5 SCC 749, particularly the observations which has been made by the Hon'ble Apex Court in its para 28, which is extracted hereunder:-
"28. Summoning of an accused in a criminal cases 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 4 only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
9. Almost an akin principles about the parameters which are required to be followed, by the court for summoning an accused person has been later on dealt with by the Hon'ble Apex Court in a judgment reported in (2013) 4 SCC 505, wherein it has been observed that summoning of an accused person in a criminal proceedings, since it carries a wider responsibility on the court in order to avoid any embarrassment to be faced, by the person, who is required to be summoned for facing a criminal trial, the court has had to apply its logical mind in each of the given set of circumstances of the case as to whether at all an accused is required to be summoned or not, invariably in all these five cases this factor is missing because the respective Judicial Magistrate, who were seized with the criminal proceedings has not even dealt with the effect of the charge sheet, the records placed before it and to justify the necessity of summoning the present applicants for being tried for the aforesaid offences.
10. On this solitary ground, the C-482 applications are allowed without disturbing the respective charge sheet submitted in the proceedings. The matter is remitted back to the respective courts, to pass a fresh and reasoned order based on consideration of the material which is placed before it and after due deliberation on the charge sheet, as well as the other material available before it to justify the summoning, in the light of the above ratio of the Hon'ble Apex Court.
511. It is hope and trusted that after the remittance of the C-482 Application before the respective court, the court would venture to decide the matter at the stage of summoning of the accused person, within a period of two months from the date of production of certified copy of this order.
(Sharad Kumar Sharma, J.) 08.12.2022 Arti