Allowed

Ganesh Dutt Shukla v. State of U.P. and Another

Allahabad HC2 Nov 2022A482/4964/2022

Case brief

AI extract

What is this about?

The High Court quashed a summoning order issued by the Judicial Magistrate, Gorakhpur, in a complaint case. The court held that the impugned order failed to record an opinion on whether sufficient ground existed for proceeding, contrary to Section 204 Cr.P.C. and Supreme Court precedent. The matter was remanded for a fresh order.

What did the court decide?

Impugned summoning order dated 18.01.2022 is quashed; matter remanded to pass fresh order after considering statements under Sections 200 and 202 Cr.P.C.

Ganesh Dutt Shukla Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 4964 of 2022

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Applicant :- Ganesh Dutt Shukla Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Kumar Pandey,Stuti Singh Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Sri Sanjay Kumar Pandey, learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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There is a challenge to the impugned summoning order dated 18.01.2022 passed in Complaint Case No. 38329 of 2021 whereby the applicants are summoned for the offence under Sections 323, 504, 506 I.P.C., P.S. Sikariganj, District Gorakhpur (Ram Dayal Shukla Vs. Ganesh Dutt Shukla) which is pending in the Court of Judicial Magistrate, Court No. II, Gorakhpur.

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This Court has passed the following order on 05.09.2022:

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"As per office report dated 23.07.2022, notice has been served upon opposite party no.2 through heir but no one has put in appearance on behalf of opposite party no.2.

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Opposite parties may file their counter affidavit within four weeks, thereafter, learned counsel for the applicant shall have two weeks' time to file rejoinder affidavit.

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List on 02.11.2022.

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Interim order, if any, is extended till the next date of listing."

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Learned counsel for the applicant submits that in the summoning order, the requisite opinion that there is sufficient material available to proceed, as required under Section 204 Cr.P.C., is absent and he has placed reliance in the Lalankumar Singh and others vs. State of Maharashtra, 2022 SCC OnLine SC 1383.

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I have considered the above submissions and also taken note of the judgment passed by Supreme Court in Lalankumar Singh and others vs. State of Maharashtra, 2022 SCC OnLine SC 1383 where in para 38 it is held that:

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"38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused."

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I have perused the impugned order dated 18.01.2022 passed by the Court of

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Judicial Magistrate, Court No. II, Gorakhpur in Case No. 38329 of 2021, relevant part of which is reproduced hereinbelow:

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" पततवललआददशतररपसत हहई।पररवतदलरतमदयतलशतकलतदतरतपसत पररवतदपतअभभयतकगणगणदशदत शतकलतबगगरहककधतरत 323, 504, 506, 452, 509, 427 भत०द०सस०कदअनतगरततलबकरपरलकणहदतत पसत भकयतगयत।

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पररवतदलदतरतअपनदपररवतदकरतनककदसमररनममसवयसककधतरत 200 द०प०सस०व 202 द०प०सस०मम अभमतभतपतठलवभवजयलकमलककपरलभकतकरतयतगयतहग।

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पररवतदलदतरतअपनदपररवतदकरनकदसमररनममवररषपतललसअधलककगकरखपतरककपदभषतपतररनतपतव रलजसटटलरसलदककछतयतपभतवअनयदसततवदजदतलखलभकयतगयतहग। पररवतदलकदपररवतदपतममउभललखततथयकवउसकदसमररनममदतलखलअभभलदखकसदतरतसतकयसदअभभयतक गणदशदतककपरमदषयतधतरत 323, 504, 506 भत०द०सस०कदअनतगरततलबभकयदजतनदकतपयतरपआधतरहग।

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पततवललपरउपलबधसतकयतरतअभभलदखकसदअभभयतककदभवरदअनयधतरतओममअपरतधनहलबनततहग।

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आददश

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अभभयतकगणदशदतककधतरत 323, 504, 506 भत०द०सस०कदतहतजररएसममनतलबभकयतजतततहग।पररवतदल इसससबधममआवशयकपगरवलअनदर 7 भदवसममकरद।पततवललवतसतदउपससरभतअभभयतकभदनतसक 28.03.2022 ककपदशहक। "

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In view of the above, I found merits in the arguments of learned counsel for the applicant and after taking note of Lalankumar Singh (Supra) that in impugned order, the requisite opinion that there was sufficient material available, was absent, in the result, application is allowed. Impugned summoning order dated 18.01.2022 passed by Court of Judicial Magistrate IInd, Gorakhpur in Complaint Case No. 38329 of 2021, under Sections 323, 504, 506 I.P.C., P.S. Sikariganj, District Gorakhpur (Ram Dayal Shukla Vs. Ganesh Dutt Shukla), is set aside. The matter is remanded to Trial Court to pass fresh order after considering the statements recorded under Sections 200 and 202 Cr.P.C. and also taking note of the judgment passed by Supreme Court in Lalankumar Singh (supra) , preferably within a period of four weeks from today.

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Order Date :- 2.11.2022 A. Mandhani

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Digitally signed by ABHISHEK MANDHANI Date: 2022.11.11 10:34:23 IST Reason: Location: High Court of Judicature at Allahabad

Ganesh Dutt Shukla v. State of U.P. and Another

Case brief

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Ganesh Dutt Shukla v. State of U.P. and Another

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