Allahabad High Court
Hariram Verma And 4 Others vs State Of U.P. & Another on 3 May, 2016
Author: Pramod Kumar Srivastava
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- APPLICATION U/S 482 No. - 8041 of 2015 Applicant :- Hariram Verma & 4 others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mayank Srivasrava, Jitendra Kumar Singh Counsel for Opposite Party :- Govt. Advocate, Fakhr Uz Zaman Hon'ble Pramod Kumar Srivastava, J.
1. Heard learned counsel for the applicants and learned AGA for the State. In this case none was present on behalf of O.P. No.-2 (complainant) at the time of hearing.
2. This application under section 482 Cr.P.C. was preferred for quashing the proceedings of complaint case No. 2908/ 2014 Laxmi Narain v. Hariram Verma & others u/ss 323, 504, 506, 452 IPC pending in the court of Chief Judicial Magistrate, Jhansi and the summoning order dated 02-09-2014 passed in it.
3. Uncontroverted facts in present petition are that the applicants and O.P. No.-2 and are neighbours. Smt. Bhawna is the daughter Laxmi Narain O.P. No.-2 (complainant) who was married with Kaushal Kishor, resident of Jalaun, but had lefthim. then her husband had lodged FIR in police station Konch, district Jalaun on 04-07-2013 in which he mentioned his doubt that she had gone with Nitin, s/o Hariram Verma (applicant No.-2). In that case alleged victim Smt. Bhawna had filed affidavit before that her mother is a lady of bad character who had obtained money and forcibly got her (Bhawna) married with Kaushal Kishor. So she left her husband. But her mother is still forcing her to go with her husband. She has danger from her mother and her accomplices who want to have illicit relations with her. Her husband had also lodged a criminal case on incorrect facts.
4. The O.P. No.-2 (complainant) had filed application u/s 156(3) CrPC that his daughter his daughter was abducted in presence of Kaushal Kishor by Hariram Verma, Krishna Kumar @ Nikki, Smt. Rani (w/o Hariram Verma), Km. Shivani and Rubi (daughters of Hariram Verma) on 18.10 2013. Then on 18.10.2013 these persons informed these facts to Hemant (s/o Laxmi Narain O.P. No.-2) and started abusing him. When he protested then these five persons chased him in house of complainant and beaten him in his house.
5. Said application u/s 156(3) CrPC was registered as complaint case, in which complainant examined him u/s200 CrPC and his wife and son u/s 200 CrPC. Then the Magistrate concerned had passed impugned order of summoning dated 02-09-2014 by which the five accused named in complaint were summoned for offences u/ss 323, 504, 506, 452 IPC. This complaint case and the summing order is under challenge in present petition by applicants, who are summoned accused of that case.
6. Learned counsel for the applicants contended that entire material available on record make it clear that no such incident had happened and no offence has been committed, and applicants are being unnecessarily harassed. The complainant (OP no.-2) had falsely instituted the complaint case in which applicants were summoned on the basis of false evidence. This is abuse of process of court. In the interest of justice and for preventing abuse of legal process in the form of complaint case and providing justice, the inherent power of court should be exercised and proceedings of said complaint case should be quashed. He also contended that there is material contradictions in statements of witnesses examined under Section 200 and 202 CrPC. But those facts were ignored by the court below which had passed summoning order in question which should be set aside along with complaint.
7. 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.
8. 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.
9. In ruling "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :-
"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."
10. In "Paul George vs. State, 2002 Cri.L.J. 996" Hon'ble Supreme Court held :-
"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."
11. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 the Apex Court had held :
"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."
12. It is settled principle that while summoning an accused, the court has to see prima facie evidence. The ''prima facie evidence' means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The enquiry u/s 202 CrPC is limited only to ascertain of truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not.
13. As held by the Courts as above, the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind.
14. In light of this legal position I have gone through the impugned order. A perusal of this order indicates that neither any discussion of evidence was made by learned, nor was it considered as to which accused had allegedly committed what overt act. The five accused persons of complaint were summoned for offences mentioned in it. 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 the facts and circumstances of the case and the evidence or the 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. Therefore it is liable to be quashed.
15. In Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520 the Apex Court had hld as under:
"20. 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."
16. Considering the uncontroverted averment of present petition u/s 482 CrPC as well as affidavit supporting it, the incorrect and unbelievable complaint case, and false implication of five petitioners and the general allegations levelled by informant in her FIR without allegations of any specific act, the incorrectness of cause of action for the complaint and considering the vagueness of information mentioned in complaint, and in light of verdict mentioned in aforesaid rulings of Hon'ble Apex Court, this appears to be a case in which applicants should succeed and the impugned summoning order as well as the complaint case are liable to be quashed.
17. For the reasons discussed above, the impugned summoning order of the court below is defective and liable to be set aside. Since the possibility of conviction of applicants is bleak and continuation of criminal case would put the accused to great oppression and prejudice, and extreme injustice would be caused to them by not quashing the criminal. Therefore it would be unfair and contrary to interest of justice to continue the criminal proceeding and direct the applicants to go through protracted procedure of trial. Therefore the continuation of criminal proceeding in this case would tantamount to abuse of process of law.
18. Therefore, by exercising inherent jurisdiction of this Court and for preventing abuse of process of Court, this application u/s 482 CrPC Is allowed. The proceedings of complaint case no. 2908/ 2014 Laxmi Narain v. Hariram Verma & others u/ss 323, 504, 506, 452 IPC pending in the court of Chief Judicial Magistrate pending in the Court of Chief Judicial Magistrate, Jhansi are hereby quashed.
19. Let a copy of this order was sent to the trial court concerned immediately for ensuring compliance.
Order Date :- 3.5.2016 SR