Allowed

Arshad and 3 Others v. State of U.P. and Another

Allahabad HC8 Jul 2024A482/21255/2024

Case brief

AI extract

What is this about?

This High Court allowed an application under Section 482 Cr.P.C. to quash a cryptic summoning order dated 13.04.2023. The Court held that the order lacked application of mind and did not articulate sufficient grounds for proceeding. The matter was remanded to the lower court to pass a fresh speaking order.

What did the court decide?

Summoning order dated 13.04.2023 set aside; matter remanded to lower court to pass fresh order within three weeks.

Arshad and 3 Others vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:132175

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Court No. - 77

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Case :- APPLICATION U/S 482 No. - 21255 of 2024 Applicant :- Arshad And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rahul Dev Singh,Sarve Nazir,Zafar Abbas Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

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1. Heard Sri Sarve Nazir, learned counsel for the applicants and Sri Sai Girdhar, learned counsel for the State and perused the records.

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2. The present application under Section 482 Cr.P.C. has been filed by the applicants- Arshad, Suleman, Smt. Arfa Bano and Shadab Husain @ Bittu, with the prayer to allow the present application and quash the entire proceeding as well as charge-sheet dated 24.03.2022, 19.03.2023 & cognizance and summoning order dated 13.04.2023 in Criminal Case No. 3761 of 2023 (State of U.P. Vs. Suleman and others) arising out of Case Crime No. 293 of 2021, under Sections 307, 504, 506, 34, 120B I.P.C., Police Station Maudaha, District Hamirpur, pending in the court of Additional Chief Judicial Magistrate, Hamirpur, with a further prayer that proceedings of the aforesaid case be stayed during the pendency of the present application.

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3. Learned counsel for the applicant submits that the order dated 13.04.2023 summoning the applicants is totally non speaking order without application of mind. It is next submitted that the order summoning is an order without application of mind and is totally a cryptic order. It is submitted that the law with regards to an order summoning is that an order summoning an accused has to be an order which although need not be a detailed order but at the most should show application of mind by the court concerned and also should address to the satisfaction of the court with regards to facts of the matter which would enable it to summon the accused which is lacking in the matter. It is submitted that as such the order summoning the accused be set aside.

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4. Learned counsel for the State though opposed the prayer for quashing.

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5. After having heard learned counsels for the parties and perusing the record, it is evident that passing of a speaking order spell out whether sufficient ground for proceeding exists or not is a well settled requirement of law. Any deviation or error in the same would make the said order liable to be set aside.

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6. In the case of Lalankumar Singh v. State of Maharastra: 2022 SCC OnLine SC 1383 the Apex Court has reiterated the requirements of a summoning order. It has been held as follows:

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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

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

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53. 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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39. A similar view has been taken by this Court in the case of Ashoke Mal Bafna v. Upper India Steel Manufacturing and Engineering Company Limited, (2018) 14 SCC 202, (supra).

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7. Again the Apex Court in the case of Sachin Garg Vs. State of U.P. and Another : 2024 SCC OnLine SC 82 has held that a summoning should reflect the satisfaction of the Magistrate issuing it. It was held as under:

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"20. While it is true that at the stage of issuing summons a magistrate only needs to be satisfied with a prima facie case for taking cognizance, the duty of the magistrate is also to be satisfied whether there is sufficient ground for proceeding, as has been held in the case of Jagdish Ram (supra) [Jagdish Ram v. State of Rajasthan, (2004) 4 SCC 432]. The same proposition of law has been laid down in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749]. The learned Magistrate's order issuing summons records the background of the case in rather longish detail but reflects his satisfaction in a cryptic manner. At the stage of issue of summons, detailed reasoning as to why a Magistrate is issuing summons, however, is not necessary.……."

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8. Looking to the facts and circumstances of the case and without going into the merits of the case as of now, the order dated 13.04.2023 is hereby set aside.

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9. The application is allowed to this extent.

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10. The matter is remanded back to the court below to pass fresh order in accordance with law within a period of three weeks from the date of production of a certified copy of this order.

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Order Date :- 14.8.2024/AS Rathore

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(Samit Gopal,J.)

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Digitally signed by :- ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad

Arshad and 3 Others v. State of U.P. and Another

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Arshad and 3 Others v. State of U.P. and Another

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