Partly allowed

Suresh Chandra Vaishya and Another v. State of U.P. and Another

Allahabad HC18 Jul 2018A482/20106/2018

Case brief

AI extract

What is this about?

Single judge allowed the applicant'sMisc. Application under Section 482 Cr. P. C., setting aside a summoning order for being cryptic, arbitrary, and failing to record prima facie satisfaction or follow statutory inquiry requirements.

What did the court decide?

Impugned summoning order dated 19.12.2017 set aside; Metropolitan Magistrate directed to pass a fresh order.

Suresh Chandra Vaishya and Another Vs State of… — Criminal Trial and Appeal | Allahabad HC (2018)

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Court No. - 44

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Case :- APPLICATION U/S 482 No. - 20106 of 2018

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Applicant :- Suresh Chandra Vaishya And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ravi Sahu Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Ravi Sahu, learned counsel for the applicants and the learned A.G.A. for the State.

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In compliance of the order of this Court, learned counsel for the applicants has filed a supplementary affidavit today in Court, which is taken on record.

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This application under section 482 Cr. P. C. has been filed challenging the summoning order dated 19.12.2017 passed by the Metropolitan Magistrate, Court No. 2, Kanpur Nagar in Complaint Case No. 2697 of 2015 (Mohd. Tariq Vs. Suresh Chandra Gupta and others), under sections 323, 504 and 506 IPC, P.S.-Chakeri, District-Kanpur Nagar as well as the entire proceedings of the above mentioned complaint case.

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From the record, it appears that initially an F.I.R. dated 04.03.2015 was lodged by the opposite party no.2, which was registered as Case Crime No. 208 of 2015 under Sections 406, 420, 504, 506 and 323 I.P.C., Police Station, Chakeri, District Kanpur Nagar. Subsequently, the investigation of the aforesaid case crime was conducted in terms of Chapter XII Cr.P.C. During the course of investigation, the statements of the first informant, namely, Mohd. Tariq and other witness were recorded under Section 161 Cr.P.C. After completion of the statutory investigation, the Investigating Officer formed an opinion that the final report should be submitted in the matter. Accordingly, the Investigating Officer submitted the final report dated 15.06.2015. Aggrieved by the submission of the aforesaid final report, the opposite party no.2 filed a protest petition dated 22.10.2015. The Magistrate accepted the protest petition and directed that the same shall proceed as a complaint case. Accordingly, the statement of the complainant-Mohd. Tariq was recorded on 15.12.2015 under Section 200 Cr.P.C. and that of his witness namely Sahid Hasan Khan on 02.02.2010 under Section 202 Cr.P.C. Thereafter, on the basis of the aforesaid, the court below has summoned the present applicants under Sections 323, 504, 506 I.P.C vide summoning order dated 19.12.2017.

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Learned counsel for the applicant invited the attention of the Court to the summoning order dated 19.12.2017. He submits that the order impugned in the present application is wholly arbitrary and therefore liable to be set aside by this Court. Elaborating his submission, learned counsel for the applicant submits that the Court below has simply recorded a conclusion that on the basis of the complaint, the statement of the complainant and his witnesses, prima facie an offence under sections 323, 504 and 506 IPC appears to have been committed. The said conclusion recorded by the Court below is not preceded by a discussion of the allegations made in the complaint or the statement of the complainant and his witnesses as recorded under sections 200 and 202 Cr. P. C. or the material collected by the Investigating Officer during the investigation of Case Crime No. 208 of 2015 under Sections 406, 420, 504, 506 and 323 I.P.C. preceding the present complaint. He, therefore, submits that in the absence of any finding recorded by the Court below, on the basis of the averments made in the complaint, the statement of the complainant and that of the witnesses, no prima facie satisfaction was recorded by the Court below for summoning the applicant under sections 323, 504, 506 IPC.

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In support of the aforesaid submission, reliance is placed upon the judgement of this Court in the case of Mahboob and others vs. State of U.P. and another , reported in 2017 (2) JIC, 320, (All) (LB) . Paragraph Nos. 10, 11 and 12 of the said judgement are relevant for the controversy in hand and are accordingly reproduced herein under:-

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"(10) 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:

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"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:

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"2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,"

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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

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Code."

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(11) 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.

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(12) 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."

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Reliance is also placed upon the judgement of this Court in the case of Smt. Shiv Kumar and others vs. State of U.P. and another , reported in 2017 (2) JIC, 589, (All) (LB) . Paragraph No. 10 of the aforesaid judgement is relevant for the controversy in hand. The same is as under: -

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"Learned Magistrate was required to at least mention in the order about the prima facie satisfaction for summoning the accused. The order must reflect that the learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint. The accused cannot be summoned mechanically merely by writing that perused the statements under Sections 200 and 202 Cr. P. C."

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In the light of the judgements referred to above, it is explicitly clear that the impugned summoning order passed by Court below is cryptic and does not stand the test laid down by this Court.

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Accordingly, the present criminal misc. application succeeds and is allowed. The impugned summoning order dated 19.12.2017 passed by the Metropolitan Magistrate, Court No. 2, Kanpur Nagar in Complaint Case No. 2697 of 2015 (Mohd. Tariq Vs. Suresh Chandra Gupta and others), is set aside. The Metropolitan Magistrate, Court No. 2, Kanpur Nagar, shall pass a fresh order in the light of the observations made herein above.

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With the aforesaid directions, this application is allowed.

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Order Date :- 18.7.2018 YK

Suresh Chandra Vaishya and Another v. State of U.P. and Another

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Suresh Chandra Vaishya and Another v. State of U.P. and Another

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