Allahabad High Court
M/S Agrawal Khandelwal And Associates ... vs State Of U.P. And Another on 22 July, 2020
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 3 Case :- APPLICATION U/S 482 No. - 12066 of 2020 Applicant :- M/S Agrawal Khandelwal And Associates Charted Accountants Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mahesh Chandra Tiwari,Kiran Tiwari Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Heard Sri Mahesh Chandra Tiwari, learned counsel for the applicant through video conferencing and Sri P.K. Srivastava, learned A.G.A. for the State. Perused the record.
This application under Section 482 Cr.P.C. has been filed to quash the entire criminal proceedings of Complaint Case No. 11 of 2019 (R.O.C. vs. M/s Agrawal Khandelwal and Associates Charted Accountants), under Section 143 Companies Act 2013, P.S.-Kamla Nagar, District- Agra, as well as summoning order dated 27.2.2019 passed by the Special Judicial Magistrate, Agra in the said complaint case.
It has been submitted by learned counsel for the applicant that the concerned Judicial Magistrate did not apply his judicial mind at the time of passing the summoning order against the applicant as the impugned summoning order has been passed in five lines based on proforma, which is not permissible under law. Learned counsel for the applicant has relied upon the judgment in the case of Ankit Vs. State of U.P. & another reported in 2009 (9) ADJ 778. Certified copy of the impugned summoning order is annexed as Annexure 1 to the affidavit which goes to show that the order has been passed in five lines based on a proforma. The said five lines appear to be typed by the typist of the concerned Magistrate. Learned Magistrate has simply put his initial over his name without applying his judicial mind before passing the said order.
He has further submitted that the learned Magistrate has simply signed the summoning order. The said proforma based summoning order in five lines shows that there was total non-application of mind, while passing the same.
Learned counsel for the applicant further submits that the court below while summoning the applicant has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial.
Learned counsel for the applicant has confined his argument only to the extent that the impugned summoning order is a proforma based order, which is in five lines only and the same has been passed without applying its judicial mind, therefore, is illegal and liable to be quashed.
On the other hand, learned A.G.A. submits has opposed the present application prayer made by the learned counsel for the applicant but he could not dispute the submissions made by the learned counsel for the applicant.
The argument advanced on behalf of applicant has substance. The use of proforma in passing the judicial order is not proper and the order of summoning the applicant has been passed without application of judicial mind, which is substantiated by the fact that neither the facts of the case nor any finding or reason have been mentioned in the summoning order.
In Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr reported in AIR 2012 SC 1747, the Apex Court has held that Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.
In Sunil Bharti Mittal v. Central Bureau of Investigation reported in AIR 2015 SC 923, the Three Judges' of the Apex Court held as under:
" 47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself.."
In light of the judgments referred to above, it is explicitly clear that the impugned order dated 27th February, 2019 is cryptic and does not stand the test of the law laid down by the Apex Court.
Accordingly, the impugned summoning order dated 27.02.2019 cannot be legally sustained and is hereby quashed. Learned court below is directed to pass a fresh order on the complaint after applying his judicial mind.
The present application stands allowed.
There shall be no order as to costs.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 22.7.2020 Naresh (Samit Gopal,J.)