Disposed

M/S Ankit Brick Industry and 4 Others v. State of U.P. and Another

Allahabad HC27 Aug 2024A482/20183/2024

Case brief

AI extract

What is this about?

Application under Section 482 CrPC sought quashing of a summoning order in a Mines and Minerals Act complaint. The High Court found the Magistrate had not recorded prima facie satisfaction, quashed the summoning order and entire proceedings, and directed a fresh order within one month.

What did the court decide?

Summoning order dated 27.03.2017 and entire proceeding of Complaint Case No.2021 of 2017 quashed; court below directed to pass fresh order preferably within one month.

M/S Ankit Brick Industry and 4 Others vs… — Mining and Natural Resources | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:197929

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Court No. - 79

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Case :- APPLICATION U/S 482 No. - 20183 of 2024

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Applicant :- M/S Ankit Brick Industry And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ratnesh Kumar Jaiswal Counsel for Opposite Party :- G.A.

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Hon'ble Arun Kumar Singh Deshwal,J.

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Heard Sri Ratnesh Kumar Jaiswal, learned counsel for the applicants, Sri Ramesh Kumar, learned A.G.A for the State and perused the record.

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The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 27.03.2017 passed by Chief Judicial Magistrate, Mirzapur as well as entire proceeding of Complaint Case No.2021 of 2017, under Sections 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957, Police StationKachhawan, District- Mirzapur pending in the court of Chief Judicial Magistrate, Mirzapur.

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On perusal of the order sheet, it appears that the applicants have approached this court almost after seven years and the reason for delay was mentioned that no summons was received by the applicants. Therefore, this court vide order dated 18.11.2024 directed Superintendent of Police, Mirzapur to file a personal affidavit why the summons issued during the last seven years have not been served to the accused. But in his personal affidavit Superintendent of Police, Mirzapur had specifically stated that police did not receive any summons from the court in the complaint in question and for that reason that could not

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be served upon the accused. Thereafter, this court directed the District Judge, Mirzapur to submit his report whether any summons has been actually handed over or dispatched to the police for service. Though, the report was submitted by the CJM through District Judge but in that report, it was not mentioned, whether the summon has been actually handed over or dispatched to police or not. Thereafter, this court again vide order dated 12.12.2024 directed the District Judge to submit his report and also explain why he has overlooked the specific direction of this court regarding the information whether the summons has been actually dispatched or handed over to police and also directed District Judge, Mirzapur to appear personally before this court through video conferencing.

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In pursuance of order dated 12.12.2024, District Judge, Mirzapur has submitted his report dated 16.12.2024 mentioning therein that the process registers maintained in several courts of District Judgeship, Mirzapur are not made in accordance with the amended Rules 12 of General Rules (Criminal) and for that reason, there is no information available on record whether the summon issued to accused has been actually handed over or dispatched to police. Learned District Judge, Mirzapur also submitted that he had already instructed to the concerned staff to maintain the process register in accordance with the General Rules (Criminal) and also initiated departmental enquiry for fixing the responsibility upon the delinquent employee who failed to maintain the process register in accordance with the General Rules (Criminal). It is further submitted by the District Judge, Mirzapur that now the summons has been

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handed over to police for service upon the accused. Though, there is a sheer negligence not only on the part of the staff of concerned Presiding Officer in maintaining the process register in accordance with the Rules but it is also the negligence on the part of the Presiding Officer who failed to check the process register maintained in their court.

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However taking a lenient view in this matter, this court resists itself from making any comment on the conduct of Judicial Officers but expects the present District Judge, Mirzapur that he will ensure that the process register should be maintained in accordance with the General Rules (Criminal) in all the courts under his judgeship. Therefore, no further order is required to be passed so far as the service of summon is concerned. Therefore, court proceeds to hear this case on merit.

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Learned counsel for the applicants has submitted that from the perusal of the cognizance order dated 27.03.2017, it is explicit that there is complete non-application of mind and concerned court has not recorded, whether any prima facie case is made out against the applicants.

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Learned AGA could not dispute the aforesaid fact.

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Having considered the submission of learned counsel for the parties and on a perusal of record, the impugned summoning order dated 27.03.2017, shows non-application of mind. The Apex Court in the case of Dayle De'Souza Vs. Union of India reported in (2021) 20 SCC 135 observed that even if the complaint is filed by the public servant and the complainant is not required to be examined under Section 200 Cr.P.C., even then it is a duty of Magistrate to

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apply his mind to see whether on the basis of the allegations made in the evidence, prima facie case for taking cognizance and summoning the accused is made out or not. Paragraph no.36 of the aforesaid judgement is being quoted as under:

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“ 36. Equally, it is the court's duty not to issue summons in a mechanical and routine manner. If done so, the entire purpose of laying down a detailed procedure under Chapter XV of the 1973 Code gets frustrated. Under the Proviso (a) to Section 200 of the 1973 Code, there may lie an exemption from recording pre-summoning evidence when a private complaint is filed by a public servant in discharge of his official duties; however, it is the duty of the Magistrate to apply his mind to see whether on the basis of the allegations made and the evidence, a prima facie case for taking cognizance and summoning the accused is made out or not. This Court explained the reasoning behind this exemption in National Small Industries Corpn. Ltd. v. State (NCT of Delhi) [National Small Industries Corpn. Ltd. v. State (NCT of Delhi), (2009) 1 SCC 407 : (2009) 1 SCC (Civ) 192 : (2009) 1 SCC (Cri) 513] : (SCC p. 415, para 12)

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“12. The object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused. (See Nirmaljit Singh Hoon v. State of W.B. [Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753 : 1973 SCC (Cri) 521] ) Where the complainant is a public servant or court, clause (a) of the proviso to Section 200 of the Code raises an implied statutory presumption that the complaint has been made responsibly and bona fide and not falsely or vexatiously. On account of such implied presumption, where the complainant is a public servant, the statute exempts examination of the complainant and the witnesses, before issuing process.”

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The issue of process resulting in summons is a judicial process that carries with it a sanctity and a promise of legal propriety.”

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From the above legal position, it is clear that it is a mandatory duty of the Magistrate to record his prima facie satisfaction for making out the case against the accused person even if the complaint is filed by the public servant which is missing in the present case also. Therefore,

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impugned summoning order dated 27.03.20217 is ex-facie shows non-application of mind and contrary to direction of the Apex Court, hence deserves to be quashed.

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Accordingly, the summoning order dated 27.03.2017 passed by Chief Judicial Magistrate, Mirzapur as well as entire proceeding of Complaint Case No.2021 of 2017, under Sections-4/21 of the Mines and Minerals (Development and Regulation) Act, 1957, Police StationKachhawan, District- Mirzapur pending in the court of Chief Judicial Magistrate, Mirzapur, is hereby quashed.

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However, court below is directed to pass fresh order, expeditiously, preferably within a period one month from the date of receiving the copy of this order.

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With the aforesaid observations, present application is disposed of .

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Order Date :- 18.12.2024 S.Chaurasia

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Digitally signed by :- SHUBHAM CHAURASIA High Court of Judicature at Allahabad

M/S Ankit Brick Industry and 4 Others v. State of U.P. and Another

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M/S Ankit Brick Industry and 4 Others v. State of U.P. and Another

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