Vipin Kumar Shivhare vs State of U.P. and 2 Others

Neutral Citation No. - 2024:AHC:150724

Court No. - 74

Case :- APPLICATION U/S 482 No. - 16536 of 2024

Applicant :- Vipin Kumar Shivhare Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Anil Kumar Singh,Kishan Gautam Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Sri Kishan Gautam, learned counsel for applicant.

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This application is filed by complainant. His application was earlier rejected by learned Magistrate by passing an order U/s 203 Cr.P.C.

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Aforesaid order was challenged at the instance of complainant which was allowed and matter was remitted back to pass fresh order.

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In aforesaid circumstances, an order dated 16.02.2022 was passed whereby opposite parties - 2 and 3 were summoned under Sections 420, 406, 467, 468, 471, 120B and for reference, order is quoted below -:

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"ददनननक-16.02.2022

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पतनवललपपशहहई।पनररकप दवदननअधधवकनककससननगयन।पतनवललतरन मनननलय दनगरननल नयनयनलय दनरन दनगरननल सन० 283/19 दवदपन कसमनर दशवहरप बननम उ०प० रनजय आदद मम पनररत आदपश ददनननदकत 26.02.2021 कनससममननअवलककनदकयन।

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पतनवललकप अवलककनसपसपषहहदकपनररदनरनदवपकलगणकप दवरद रनननहरलपवरतमममसकदमनपनजलककतकरनयपजननपहपतसपनररननपतअनतगरत धनरन-156 (3) द०प०सन० पसतसत दकयन गयन। धजसप आदपश ददनननदकत 3.03.2018 दनरनपररवनदकप रपममदजरदकयनगयनतरनपररवनदलव अनयसनकययककधनरन 202 कप बयननअनदकतदकयपगयप।उसकप पशनत आदपश ददनननदकत 11.02.2019 दनरन पररवनदलकन पररवनदधनरन 203 दन०प०स०ककदनरसतदकयनगयन।उसकप पशनतपररवनदलदनरनआपरनधधक पसनरलकण वनद सन० 283/2019 दनधखल दकयन गयन धजसमम आदपश ददनननदकत 26.02.2021 दनरनपसनरलकणवनदसवलकनरदकयनगयनवअवर

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नयनयनलय दनरन पनररत आदपश ददनननदकत 11.02.2019 अपनसत दकयन गयन व आदपदशत दकयन गयन दक पसनन यह वनद ससनवनई कप सनकय कप आलकक मम समसदचत तनदकरक दवशलपषण/जननच करतप हहए यरकदचत आदपश पनररतकरम।

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पनररकप दवदननअधधवकनककससननगयनवमनननलयदनगरननलनयनयनलय दनरन पनररत आपरनधधक पसनरलकण आदपश ददनननदकत 26.02.2021 कन ससममनन अवलककन दकयन गयन व पतनवलल पर उपलबध सनकयय व दसतनवपजयकनसमयकपररशललनदकयनगयन।पररशललनपशनतनयनयनलय इसदनषकषरपरपहहनचलहहदकदवपकलगणडन०अदनलवमनरपसतशलरनमचनद वमनर, शलमतलवनसनतलवमनरपतनलशलअदनलवमनर, दववपकरमनपसतशल रमन, शलमतलसपननरमनपतनलशलदववपकरमनकप दवरदपरमदषयन मनमलन अनतगरत धनरन- 420, 406, 467, 468, 471,120 बल भन०दन०सन०बनननपतलतहकतनहहइसकप अदतररकअनयककईअपरनधबननन पतलत नहह हकतन हह। अतन अदभयसकगण उपरकक कक तलब दकयन जननन नयनयकदचतपतलतहकतनहह।"

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Aforesaid order was challenged at the instance of opposite parties - 2 and 3 and Revisonal Court by impugned order dated 05.03.2024 has set aside above referred order and remitted the matter back for fresh order. Relevant part of impugned order is quoted below -:

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"9. While analysing the impugned order in the bright light of such facts and circumstances, it reveals that no discussion at all has been made by the learned Magistrate in the impugned order dated 16.02.2022. In the first two paragraphs of such order, the previous chronology of the events of the matter (beginning from institution of complaint till the passing of judgment and order dated 26.02.2021 by the revisional Court) has been recited. It is only the third paragraph in which it has just been observed that while persuing the record in the light of revisional order dated 26.02.2021, the Court is of the view that offence U/S. 420, 406, 467, 468, 471 and 120B I.P.C. are made out against the accused persons and they are liable to be summoned accordingly. The learned Magistrate has not applied his judicial mind at all to the facts of the matter, genesis of the dispute or the evidence produced by the complainant, its evidentiary-value/ relevance/ true-import etc.; not even the names of the witnesses have been reproduced in that order, what to say of the analysis of the contents thereof.

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Hon’ble Supreme Court of India in the matter of M/s. Pepsi Foods vs. Special Judicial Magistrate etc. - AIR 1998 S.C. 128 has held that- Summoning of an accused in a criminal case is a serous matter. Criminal law can not 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 of the accused. Magistrate has 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.

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In the backdrop of such observations, it emerges that the impugned order has been passed in very mechanical and cursory manner without application of judicial mind and against the principles of the law regarding summoning of accused persons. In such view, the impugned order does not deserve to sustained. Rather, it is liable to be quashed and matter needs to be sent back to the concerned Court for decision afresh in accordance with law and in keeping with the sound judicial principles in that regard. This revision is worthy of being allowed as such."

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Learned counsel submits that while deciding revision petition, Revisional Court has taken note of proposed defence of proposed accused persons and made an observation that it would be a civil dispute.

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Learned counsel also submits that impugned order was

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passed on 05.03.2024 when advocates were on strike. He further submits that if observations of Revisional Court are considered, only order which could be passed by learned Magistrate would be likely to an adverse order.

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At this stage, learned counsel on instructions fairly submits that this application may be disposed of with an observation that comments of Revisional Court may not be considered as a binding.

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I have considered above submissions and taken note of impugned order.

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I do not find any error in impugned order since on face of it, order dated 16.02.2022 is an unreasoned order in view of judgment of 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 .

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I have also considered last submission of learned counsel for applicant, therefore, this application is disposed of with an observation that learned Magistrate will pass a fresh order on remand without being influenced by observations made by Revisional Court on merit of case so far as case of proposed accused persons is concerned.

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However, learned Magistrate will take note of above referred judgments while passing a fresh order. Order Date :- 17.9.2024 N. Sinha

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

Vipin Kumar Shivhare v. State of U.P. and 2 Others

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Vipin Kumar Shivhare v. State of U.P. and 2 Others

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