Remanded

Mohd Siraj Saifi and 5 Others v. State of U.P. and Another

Allahabad HC9 Sept 2024A482/14950/2024

Case brief

AI extract

What is this about?

Single-judge High Court allowed an application under Section 482 Cr.P.C. setting aside a summmoning order dated 04.12.2023 as it failed to exhibit judicial application of mind contrary to Supreme Court precedents. The matter was remanded with an order to pass a fresh reasoned order after hearing the complainant within three months, despite noting the order was passed without notice to the opposite

What did the court decide?

Impugned summons order dated 04.12.2023 set aside; matter remanded to trial Court to pass a fresh reasoned order within three months.

Mohd Siraj Saifi and 5 Others vs State of U.P… — Writ and Judicial Review | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:146047

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Court No. - 74

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Case :- APPLICATION U/S 482 No. - 14950 of 2024

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Applicant :- Mohd Siraj Saifi And 5 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Hemant Shukla,Pramod Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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Present impugned order is a glaring example how the Magistrate who is supposedly aware of law in regard to pass a summoning order U/s 204 Cr.P.C. by referring one and half dozen lines on law, however, consideration, analysis and order to summon applicants has been passed only in 2 lines and for reference same is quoted below -:

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“ पततवललकक अवललकनसकवववदतहलततहहवकपररवतदलदतरतउकघटनत कक समररनममअपरतधकककतररवतहलकतपरतरपआधतरहहएववअवभरयकगण ” ववचतरणहकतयतलबवकरकजतनकरलगरहह।

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Sri Pramod Kumar Pandey, learned counsel for applicants has not taken such argument in application, however, he is able to point out such glaring legal error that impugned order is absolutely in teeth of judgment passed by Supreme Court in Lalankumar Singh and others Vs. State of Maharashtra, (2022) SCC OnLine SC 1383 and Delhi Race Club (1940) Ltd. and others vs. State of U.P. and others, 2024:INSC:626 ; 2024 SCC Online SC 2248 and for reference, relevant part thereof are quoted below -:

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- “ Lalankumar Singh (supra)

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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

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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 Investigation, (2015) 4 SCC 609 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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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 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

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incorrect."

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- Delhi Race Club (supra)

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"41. Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Penal Code, 1860 (IPC) was the official Criminal Code in the Republic of India inherited from the British India after independence. The IPC came into force in the sub-continent during the British rule in 1862. The IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita ("BNS") in December 2023 which came into effect on 1st July 2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.

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When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police - to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

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It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating viz-a-viz criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The

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two provisions of the IPC (now BNS, 2023) are not twins that they cannot survive without each other."

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In order to further appreciate aforesaid submissions, relevant part of impugned order is quoted below -:

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“ वतदलकक अधधवकतकलसयनतएववपररवतदलकक एववगवतहहकक बरतनअवतगरत धतरत 202 सल०आर०पल०सल०सवहतपततवललकतपररशललनवकरत। पररवतदककजतवचकरतकसमरपररवतदकक तथरहपरऔरउपलबधसतकर परवकसपकतरसकववचतरकरनतचतवहएऔरवनषकररकक कतरणहकलवकस सलमततकववणरतकरनतचतवहए, कक समबनधमममतननलरउचतमनरतरतलर नकअपनलवनमनधलधखतववधधवरवसरतओवसकपरपदवशरतवकरतहह- मतननलर उचच नरतरतलर इलतहतबतद नक पगवत दकवल बनतम उतरपदकश रतजर, वकमलनल ररवलजन सवखरत- २७७७/२०१६ सक रह सपष वकरत हह वक परम दषरत वनषकरर वकस पकतर पतप करनत चतवहए। मतननलर उचच नरतरतलरनककहतहहवकअपरतधकतलजतनलकतकसमरअरवतअवभरयक कलसमन / तलबकरतकसमरपरमदषरतवनषकररपतपकरनककक धलए गवतहहकक बरतनकतपरलकणकरनतचतवहएनवकककवलशबदहकतउधतरण नरतरतलरकलममकदशरकककभत व तबरतनकक शबदकक आधतरपरकतररवतहल करनकसकबचतनतचतवहए।तततपरर रहहहवकककवलगवतहहकतकयछकह दकनतपरननहहहह. आवशरकततइसबततवकहहवकगवतहहनकजलकहत रहववव क शललवरवककक दवषकलणसकवकससलनततकसवलकतरवकरकजतनक रलगरहह।

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ससरवतकलऔरसपषकरतकहहएमतननलरउचचनरतरतलरनकएस०एम०एस० फतमतर, सरमवटकलधलवमटकडबनतमनलततभदत (२००५) ८एस०सल०सल० सककहतहहवकदणडपवकरतस व हततककधतरत२०३मधजसट ट कलपररवतद कल खतररज करनक कक अधधकतररतत दकतल हह। मधजसट ट कक रह रतर वक " कतररवतहलरलगरपरतरपआधतरनहहहह।" इसबततकतपररचतरकहहवक नरतवरकववव कतपरलगवकरतगरतहह।धतरत२०४दणडपवकरतस व हतत कक अनतगरततलबलकक धलएरहआवशरकहहवकपररवतदसकपरमदषटत कतररवतहलरलगरमतमलतबनरहतहल।पररवतदइतनकसतकरसकरयकहलनत चतवहएधजससकमधजसट ट कतररवतहलपतरमभकरनककक धलएअपनतमनबनत सकक।रवदमधजसट ट पतर मतमलक ममतलबकरनकलगकगततलकतरर कत बलझऔरदमसरकपकधजसकक ववरदवकपररवतदलतरतगरत, ककपततडनत कककलईसलमतनहहरहकगल।

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पततवललकक अवललकनसकवववदतहलततहहवकपररवतदलदतरतउकघटनतकक समररन मम अपरतध कक कतररवतहल कत परतरप आधतर हह एवव अवभरयकगण ववचतरणहकतयतलबवकरकजतनकरलगरहह।”

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As referred above, learned Magistrate, though referred the law to pass an order U/s 204 Cr.P.C. but, has failed to apply the same in facts of present case and as referred above, has committed a legal error.

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Accordingly, impugned order dated 04.12.2023 passed

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by Additional Civil Judge (J.D.)/Judicial Magistrate, New Court-4, Moradabad in Complaint Case No. 37924/2023 (Arshad vs. Mohd. Siraj and others) U/s 452, 323, 504, 506 IPC, Police Station- Kotwali, District- Moradabad, pending before A.C.J.M., Court-6, Moradabad is set aside, however, considering that this order is passed without issuing notice to opposite party-2, therefore, this application is disposed of by remitting the matter back to concerned trial Court to pass a fresh order expeditiously after applying mind even on analysis and reasoning part within 3 months after hearing the complainant only.

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Registrar (Compliance) to take steps. Order Date :- 9.9.2024 N. Sinha

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Digitally signed by :- NIRMAL SINHA High Court of Judicature at Allahabad

Mohd Siraj Saifi and 5 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Mohd Siraj Saifi and 5 Others v. State of U.P. and Another

Case brief

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