Allowed

Faraien and 2 Others v. State of U.P. and Another

Allahabad HC24 Jul 2018A482/22191/2018

Case brief

AI extract

What is this about?

In a criminal miscellaneous application under Section 482 Cr.P.C., the High Court held that an impugned order summoning accused persons as a complaint case was illegal. The Court found the Magistrate failed to record reasons for rejecting the final report and lacked application of mind, violating procedural requirements under Cr.P.C.

What did the court decide?

Impugned order dated 28.05.2018 quashed. Matter remanded to Magistrate to pass fresh order within three months.

Faraien and 2 Others Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2018)

¶1

¶2

Court No. - 44

¶3

Case :- APPLICATION U/S 482 No. - 22191 of 2018 Applicant :- Faraien And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raj Kumar Khanna,Amber Khanna Counsel for Opposite Party :- G.A.

¶4

Hon'ble Rajeev Misra,J.

¶5

Heard Mr. Raj Kumar Khanna, learned counsel for the applicants and the learned A.G.A. for the State.

¶6

This application under Section 482 Cr.P.C. has been filed challenging the order dated 28.05.2018 passed by the Additional Chief Judicial Magistrate, Court No. 1, Moradabad, in Case Number 2750 of 2008 (Muzibur Rehman Vs. Faraien and others) arising out of Case Crime No. 102-A of 1996 under Section 307 I.P.C. and Section 5 of the Explosive Act, Police Station Bhojpur, DistrictMoradabad.

¶7

From the record, it appears that a first information report dated 17.04.1996 was lodged at Police Station Bhojpur, DistrictMoradabad, which was registered as Case Crime No. 102A of 1996 under Section 307 I.P.C and Section 5 of the Explosive Act. The said F.I.R. was in respect of an incident alleged to have occurred on 16.04.1996 at 9.30PM. and the present applicants were the named accused. Subsequent to the lodging of the aforesaid F.I.R., the police proceeded with the investigation of the case in accordance with the provisions of Chapter 12 Cr.P.C. The Investigating Officer recorded the statements of various witnesses under Section 161 Cr.P.C. and also collected other material. On the strength of the aforesaid, the Investigating Officer came to the conclusion that no offence can be said to have been committed by the accused persons, i.e., the

¶8

¶9

applicants herein and consequently, submitted a final report dated 30.04.1996.

¶10

Aggrieved by the aforesaid final report, the complainantopposite party no.2 filed a protest petition. The Magistrate rejected the final report and directed further investigation into the matter vide order dated 26.07.1996. Subsquent to this order dated 26.07.1996, the Senior Superintendent of Police appointed another Investigating Officer to further investigate the aforesaid case crime No. 102-A of 1996.

¶11

Upon further investigation, the Investigating Officer again submitted a final report on 28.10.1996. Against this final report dated 28.10.1996, a protest petition was filed by the opposite party no.2, which was allowed by the Magistrate and consequently, the final report was rejected vide order dated 16.09.1997. By means of the aforesaid order dated 16.09.1997, directions were issued to the informant, i.e., the opposite party no.2 to get statements recorded under Sections 200 and 202 Cr.P.C.

¶12

At this juncture, the opposite party no.2, Muzibur Rehman moved an application for modification of the order dated 16.09.1997 with a further prayer that cognizance be taken under Section 190 (1) (b) Cr.P.C. On the basis of the aforesaid application, the Magistrate allowed the same and consequently, modified the earlier order dated 23.10.1997, whereby cognizance was now taken under Section 190 (1) (b) Cr.P.C., vide order dated 23.10.1997. It was further provided that the case was not to be treated as a complaint case. As such summons were issued to the applicants. This order dated 23.10.1997 came to be challenged before this Court by means of Criminal Misc. Application No. 8602 of 1997 (Faraien and another Vs. State of U.P. and another) under Section 482 Cr.P.C. After the exchange of

¶13

¶14

affidavits, the same was allowed vide order dated 29.08.2012 and the orders dated 23.10.1993, 03.12.1997 and 08.12.1997 impugned therein were set aside and the matter was remanded to the Magistrate for passing a fresh order.

¶15

Upon remand, the Magistrate again passed an order whereby cognizance was taken under Section 190 (1) (b) Cr.P.C. and the applicants herein were summoned. This order came to be challenged before this Court by means of Criminal Misc. Application No. 10987 of 2017 (Faraien and 2 others Vs. State of U.P. and another) and the same was allowed vide order dated 17.04.2017. Subsequent to the aforesaid order passed by this Court, the complainant-opposite party no.2 filed an application dated 16.10.1997 praying therein that the case may be proceeded as a complaint case. The Magistrate has now passed the impugned order dated 28.05.2018 whereby the Magistrate has allowed the application dated 16.10.2017 filed by the opposite party no.2 and directed that the case shall now proceed as a complaint case.

¶16

Referring to the impugned order, learned counsel for the applicants submits that the Magistrate while passing the said order has firstly not rejected the final report which has been submitted. It is next contended that simply on the basis of the application filed by the opposite party no. 2 that the case be treated as a complaint case, the Magistrate has passed the impugned order dated 28.05.2018. Lastly, it is urged that there is no discussion in the entire impugned order as to on what basis the final report submitted by the Investigating Officer is liable to be rejected. In short, it is submitted that no reasons have been assigned for rejecting the final report and proceeding with the case as a complaint case.

¶17

Admittedly, the Investigating Officer upon investigation of Case Crime No. 102-A of 1996, had twice submitted the final report.

¶18

¶19

It is well settled by now that when the Court is rejecting the final report, the accused has to be afforded an opportunity of hearing and the Court has to assign reasons for not accepting the final report. In the case in hand, the Court finds that the Magistrate has complied with only the first part of the procedural requirement, i.e. affording an opportunity of hearing to the applicants but has failed to discharge the obligation regarding recording of reasons in rejecting the final report.

¶20

Apart from the above, the Court further finds that the Magistrate has simply proceeded to conclude that the case shall now proceed as a complaint case on the basis of the application filed by the opposite party no.2, meaning thereby that the Magistrate has exercised his jurisdiction in terms of Section 190 (1) (c) Cr.P.C. No foundation has been laid in the impugned order for arriving at the aforesaid conclusion.

¶21

It is well settled that initiation of criminal proceedings against any person is a serious matter and the Court should not take it lightly. 12. Reference in this regard to be made to the observations made by 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 judgment are relevant for the controversy in hand and are accordingly reproduced herein under:-

¶22

"(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:

¶23

"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:

¶24

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

¶25

It is evident from the aforesaid provision, every inquiry other than a

¶26

¶27

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 Code."

¶28

(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.

¶29

(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."

¶30

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) is also relevant in respect of the controversy involved herein. Paragraph No. 10 of the aforesaid judgement is relevant for the controversy in hand. The same is as under:-

¶31

"Learned Magistrate was required to atleast 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."

¶32

Reference may also be made to the judgement of this Court in the case of Hariram Verma and 4 Others Vs. State of U.P. and Anohter , reported in 2017 (99) ALL CC 104, wherein the following observations have been made in paragraphs 7 to 16:

¶33

"7. A perusal of this impugned summoning order indicates that

¶34

¶35

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.

¶36

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.

¶37

9. In ruling " M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118 " Hon'ble Supreme Court held :-

¶38

"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."

¶39

10. In " Paul George vs. State, 2002 Cri.L.J. 996 " Hon'ble Supreme Court held :-

¶40

"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

¶41

¶42

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."

¶43

11. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 the Apex Court had held :

¶44

"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."

¶45

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.

¶46

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.

¶47

¶48

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.

¶49

15. In Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520 the Apex Court had hld as under:

¶50

"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."

¶51

For all the reasons stated herein above, the impugned order being cryptic cannot be sustained. The same is liable to be quashed. 16. Accordingly, the present criminal misc. application succeeds and is allowed. The impugned order dated 28.05.2018 passed by the Additional Chief Judicial Magistrate, Court No.1, Moradabad in Case No. 2750 of 2008 (Muzibur Rehman Vs. Faraien and others) is hereby quashed. The matter is remanded to the Additional Chief Judicial Magistrate, Court No.1, Moradabad, with a direction to pass a fresh order in the light of the observations made herein above within three months from the date of production of a certified copy of this order.

¶52

Order Date :- 24.7.2018

¶53

Faraien and 2 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Faraien and 2 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Padam Chandra Goyal and 7 Others Vs State of U.P. and Another

Sri Om and 4 Others Vs State of U.P. and Another

Babu and 3 Others Vs State of Up and Another

Ishak Ahmad Vs State of U.P. and another

Bantu and 3 Others Vs State of U.P. and Another

Mewa Lal Singh and Another Vs State of U.P. and Another