Allowed

Annie @ Vishakha and Others v. State of U.P. and Another

Allahabad HC21 Nov 2022CRLP/5641/2012

Case brief

AI extract

What is this about?

This judgment quashes orders under Section 204 Cr.P.C. and Criminal Revision No. 458/2011 issued against petitioners in a matrimonial dispute case in Meerut. The court held that the Magistrate failed to apply mind and record substantial reasons for issuing process.

What did the court decide?

Impugned order dated 01.07.2011 passed by ACJM Meerut and order dated 23.04.2012 passed by ADSJ Meerut are hereby set aside.

Annie @ Vishakha and Others Vs State of… — Civil Procedure and Limitation | Allahabad HC (2022)

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Court No. - 84 Case :- CRIMINAL MISC. WRIT PETITION No. - 5641 of 2012 Petitioner :- Annie @ Vishakha And Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Swetashwa Agarwal Counsel for Respondent :- Govt. Advocate,Madhup Vishwas

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Hon'ble Saurabh Shyam Shamshery,J.

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The petitioners have challenged the legality, validity and correctness of impugned order dated 01.07.2011 passed by Additional Chief Judicial Magistrate, Court No.4, Meerut in Complaint Case No. 1217 of 2004 whereby the petitioners were summoned under Section 204 Cr.P.C. for offence under Sections 147, 323, 504, 506 I.P.C. as well as the impugned order dated 23.04.2012 passed by the Additional District and Sessions Judge, Court No.21, Meerut in Criminal Revision No. 458 of 2011 whereby the said revision was dismissed.

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Sri Shwetashwa Agarwal, learned counsel for petitioners submits that respondent No.2 Smt. Kiran Clemant, brother in law (devar) of was married to one Neeta Beecham who have interse matrimonial dispute and the petitioners are relative of said Neeta Beecham. It was a counter blast criminal proceedings only in order to harass the petitioners. When the complaint was filed in the year 2011, the petitioners No. 2 and 3 were unmarried girls and petitioner No.1 was working in an airline ticketing business. The allegations in the complaint were omnibus and allegations of assault were not supported by any medical report. It was very improbable that the petitioners would go at the office of Basic Shiksha Adhikari when the complainant was supposed to visit the office. There is no reason that petitioners would have prior knowledge of said visit.

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Learned counsel also submits that in the impugned order dated 01.07.2011 passed under Section 204 Cr.P.C. does not have requisite opinion that there are sufficient grounds to proceed against petitioners.

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The above submissions are opposed by Sri Madhup Vishwas, learned counsel for respondent No.2 that in the complaint as well as in the statements under Sections 200/202 Cr.P.C., prima facie a case was made out against petitioners

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under Sections 147, 323, 504 and 506 I.P.C.

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In the above background, I have carefully perused the impugned order dated 01.07.2011 wherein the Magistrate, after narrating the case of complainant, has mentioned only few lines that for the purpose of opinion that there were sufficient grounds to proceed against petitioners -:

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"ममेरमे दቛኋरቛኋ पतቛኋवलली कቛኋ पररशलीलन ककयቛኋ गयቛኋ।

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पररवቛኋदनली नमे अपनमे कथनोሪ कमे समथरन मम स्वययं कቛኋ बयቛኋन अयंतगरत धቛኋरቛኋ २०० सली आर पली सली अयंककत करቛኋयቛኋ हह तथቛኋ अयंतगरत धቛኋरቛኋ २०२ सली आर पली सली पली डब्ललू -१ कमे रूप मम रቛኋकमेश कको परलीकቌኌत करቛኋयቛኋ गयቛኋ हह तथቛኋ दस्तቛኋवमेजली सቛኋቌኚय मम पपुललस अलधकቛኋरली कको कदए गए पቛኋथरनቛኋ पत ककी पकत व तቛኋर ककी छቛኋयቛኋ पकत दቛኋलखिल ककी हह। पतቛኋवलली पर दቛኋलखिल ममौलखिक एवयं दस्तቛኋवमेजली सቛኋቌኚय कमे आधቛኋर पर अकभियपु्ሹगण कमे कवरु्ቍ धቛኋरቛኋ १४७ , ३२३, ५०४, ५०६ आई पली सली कमे अपरቛኋध कमे पथम दृष्टቛኋ पकटन हकोतቛኋ हह। अकभियपु्ሹगण तलब ककयमे जቛኋनमे यकोग्य हह।"

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The above referred part of impugned order does not justify the requisite formation of opinion that there were sufficient grounds to proceed against the petitioners and further that there was no discussion though in brief about statement of witnesses as well as it was in the teeth of judgment passed by Supreme Court in Lalankumar Singh v. State of Maharashtra, 2022 SCC OnLine SC 1383 and relevant paragraph thereof are quoted hereinbelow -:

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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. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation9, which reads thus:

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" 51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

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52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it

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cannot be refused merely because he thinks that it is unlikely to result in a conviction.

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However, the words "sufficient ground for proceeding" appearing in Section 204 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. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."

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I have also carefully perused the order passed in revision petition. The Revisional Court has also not considered carefully the law in regard to order passed under Section 204 Cr.P.C.

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In view of above, the impugned order dated 01.07.2011 passed by Additional Chief Judicial Magistrate, Court No.4, Meerut in Complaint Case No. 1217 of 2004 as well as impugned order dated 23.04.2012 passed by the Additional District and Sessions Judge, Court No.21, Meerut in Criminal Revision No. 458 of 2011 are hereby set aside.

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The petition stands allowed .

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Order Date :- 21.11.2022 Nirmal Sinha

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Digitally signed by NIRMAL SINHA Date: 2022.11.28 16:46:36 IST Reason: Location: High Court of Judicature at Allahabad

Annie @ Vishakha and Others v. State of U.P. and Another

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Annie @ Vishakha and Others v. State of U.P. and Another

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