The High Court set aside a cryptic summoning order dated 25.4.2022 passed under Section 204 Cr.P.C. for not reflecting application of judicial mind before issuing process against the accused in a cheating case.
Set-aside the impugned summoning order dated 25.4.2022 and direct the Civil Judge to pass a fresh order.
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Court No. - 88
Case :- APPLICATION U/S 482 No. - 36025 of 2022
Applicant :- Arup Kumar Chatterjee Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Kumar Gupta,Durga Prasad Counsel for Opposite Party :- G.A.,Amit Shukla
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the applicant, learned counsel for the O.P. No. 2 as well as learned A.G.A. for the State and perused the record.
This application U/s 482 Cr.P.C. has been filed for quashing the entire proceeding as well as summoning order dated 25.4.2022 in Complaint Case No. 28675 of 2021 (Gurdeep Singh Vs. Saurav Banerjee and others) under section 419, 420 IPC, P.S. Sigra, District Varanasi pending in the court of Civil Judge (J.D.) F.T.C. Ist, Varanasi.
Learned counsel for the applicant apart from the arguments concerning merits of the case also contended that impugned order is very cryptic. Learned Magistrate has not mentioned anything about prima facie satisfaction for summoning the applicant to face the trial. It is further contended that the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the learned Magistrate that he is satisfied that all the allegations in the complaint constitute an offence and when considered along with statements recorded and the result of inquiry or report of investigation under section 202 Cr.P.C. the accused is answerable before the criminal court, there is ground for proceeding against the accused under section 204 Cr.P.C. by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under section 204 Cr.P.C. this court may please to invoke its inherent power under section 482 Cr.P.C. The impugned order is per se illegal which can not stand the test of law, therefore, the entire proceeding are wholly illegal, erroneous and bad in law and misuse of process of the law.
Learned counsel for the O.P. No. 2 as well as learned A.G.A. opposed the prayer.
A perusal of the impugned order dated 25.4.2022 indicates that the learned Magistrate has only narrated precisely the facts and
thereafter reached to the conclusion that the prima facie there is sufficient ground for offence under section 419 and 420 IPC against the accused persons naming them. He has also observed that in the present matter it appears that there is a dispute of sale and purchase of land cheating and abduction. Even the facts which are narrated by the learned Magistrate in the impugned order are so precise that it does not reflect what is the dispute between the parties which constitutes a criminal offence. The learned Magistrate has not even referred the evidence recorded under section 200 and 202 Cr.P.C. in the impugned order. So without taking into consideration the entire facts as alleged in the complaint and evidence produced thereon the impugned order has been passed in a very cryptic manner. In the impugned order there is nothing which may indicate that learned Magistrate had even considered the facts of the case in hand before passing the summoning order. The 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 impugned order had considered facts of the case and evidence or law. Therefore, it appears that in fact no judicial mind was applied before passing of the impugned order of summoning. Such order can not be accepted as a proper legal judicial order passed after following due process of law.
In the following case laws it has been laiddown that the accused can not be summoned mechanically. The order of summoning must reflect that learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint and further that summoning of 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.
1. M/s. Pepsi Food Ltd. & another Vs. Special Judicial Magistrate & others, 1998 UPCrR 118.
2. Paul Goerge Vs. State, 2002 Cri.L.J. 996.
Applying the aforesaid proposition of law on the present matter it is explicitly clear that the impugned summoning order passed by the court below is cryptic and does not stand the test laid down by the law.
So without going into the merits of the case the impugned summoning order is liable to be set-aside on the aforesaid grounds alone.
Accordingly, the present criminal misc. application succeeds and is allowed. The impugned summoning order dated 25.4.2022 passed by Civil Judge (J.D.) F.T.C. Ist, Varanasi in Complaint Case No. 28675 of 2021 (Gurdeep Singh Vs. Saurav Banerjee and others) under section 419, 420 IPC, P.S. Sigra, District Varanasi is set-aside. The Civil Judge (J.D.) F.T.C. Ist/J.M., Varanasi shall pass a fresh order in the light of the observations made herein above.
Order Date :- 3.12.2022 Masarrat
Digitally signed by MASARRAT HUSAIN Date: 2022.12.05 16:39:11 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether a summoning order under Section 204 Cr.P.C. requiring application of judicial mind or can be set aside being merely cryptic?
Whether the accused can be summoned mechanically without the Magistrate reflecting satisfaction of prima facie offences?
Whether the impugned order lacks sufficient application of judicial discretion and consequently liable to be quashed under Section 482 Cr.P.C.?
Colour shows how this judgement treated each authority
M/s. Pepsi Food Ltd. & another Vs. Special Judicial Magistrate & othersRelied on¶12
1998 UPCrR 118
Paul Goerge Vs. StateRelied on¶12
2002 Cri.L.J. 996 · Who else cites this
4 provisions across 2 enactments
Arup Kumar Chatterjee
State of U.P.
Civil Judge (J.D.) F.T.C. Ist, Varanasi
Syed Aftab Husain Rizvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
