Partly allowed

Smt Shivani Tyagi and 4 Others v. State of Up and 2 Others

Allahabad HC19 Jul 2024A482/9210/2024

Case brief

AI extract

What is this about?

In this Section 482 Cr.P.C. application, the High Court held the impugned summoning order legally unsustainable as it was passed without application of mind and without giving notice to the opposite party. The matter was remitted to the learned trial court to pass a fresh order after addressing the merits and applicable exceptions under IPC.

What did the court decide?

The impugned order is quashed and the matter is remitted to the learned trial court to pass a fresh order in accordance with the observations made.

Smt Shivani Tyagi and 4 Others vs State of Up and 2 Others — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:115326

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Court No. - 74

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Case :- APPLICATION U/S 482 No. - 9210 of 2024 Applicant :- Smt Shivani Tyagi And 4 Others Opposite Party :- State Of Up And 2 Others Counsel for Applicant :- Pawan Singh Pundir Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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This application under Section 482 Cr.P.C. is filed by Sri Pawan Singh Pundir, learned counsel for the applicants, however, he is not present.

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The applicants have prayed to invoke the inherent jurisdiction of this Court, therefore, I have perused the impugned order dated 20.2.2024, whereby the applicants are summoned under Sections 406, 420 and 500 IPC as well as contents of complaint and statements recorded under Sections 200 and 202 Cr.P.C. and I find that there is merit in the case, therefore, I requested Mr.Arpit Mishra (AOR-0438/23) and Sri Rakesh Kumar Mishra, learned AGA to assist the Court as Amicus Curiae.

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Mr. Arpit Mishra, Amicus Curiae, has read the impugned order in its entirety and for reference, the same is reproduced herein after:

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“ पततवललआददशहदततपदशहहई।तलबलकदबबनदतपरपररवतदलकदबवदतनअधधवकत ककपपवरसतनतजतचतकतहह।आजपततवललकतसमयकअवलककनबकयत। पररवतदलककओरसदबवपकलगणककपररवतदपतममवबणरतधतरतओओममबवचतरण हदतततलबबकयदजतनदहदततयकधजतबकयतगयतहह।

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सओकदपममपररवतदलकतकथनहहबकबवपकनलस० 1 दतरतबवपकलसओ० 2 तत 5 सद ससज करकक एक झझठठ फजर एफ० आई० आर० स०0524/2021 सरकसर बनसम अअशशल तयसगठ आदद अअतगरत धसरस323,324,498 ए, 506 आई०पठ०सठ०थसनसमअगललरममपररवसदठगणकक दवरद दजर करस ददयस थस। उक कक स म दववकचक दसरस ददरसन दववकचनस वसअदछत / नसमजदमलदहतवसअधयसककनसमजदगठगलतपसयठजसनक क

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कसरणमकदमसउपरलकसश क इनकसनसमहटसददयसतथसदववकचनसपझणर कर धसरस323,498,506 आई०पठ०सठ० व 3/4 दहकज अधधदनयम क अनतगरतआरलपपतपकदषतकरददयस।दवपकठगणक दसरसझझठक कथनलपर दजर करसयक गयक मशकदमम ककजसनकसरठपररवसदठगणक आसपडलसमम रहन वसलक वयदकएवअ सभठररशतकदसरलकलहलनक क कसरणपररयसदठगणकलउनक ससमन शदमरदस हलनस पडस ह तथस पररवसदठगण कक समसधजक पदतषस कल अघसतहहआहह तथसमसनधसककषहहआह।धजसकसरणबतदरकदतपह झदतर क रप म 10-10 लसख रपय दवपकठगण स दवपकनठ स० 1 दसरस दज करसथर गयठ एफ०आई०आर० कक दतधध स अननतम अदसयगठ कक दतधथ ददनसक 12.04.2021 सक 1.2021 सक मय 18 पदतशतवसदषरकबयसज ककरसदशअननतमअदसयगठककदतधथतकसअयकरपसश क यसरसयअदसलत अलगअलगपसपकरनक क अधधकसरठह।

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पररवसदठ दसरस पररवसद कक कथनन कक समथरन मम सवयअ कल धसरस 200 दअ०प०सअ०एवससकठगणमलदहततयसगठ, कदपलवककषणवठरकलधसरस 202 दअ०प०सअ०कक अनतगरतपरठदकतकरसयसहहतथसअदभलकखठयससकयकक रप ममसवयअकसशपथपत, आधसरकसडरआददककछसयसपदतयसअदसधखलकक गयठहह। पतसवलठपरकक अवललकनसकदवददतहहदकपररवसदठनकअपनकबयसनधसरस 200 दअ०प०सअ०कक अनतगरतपररवसदकक तथयनकलपझणरतयससदबतदकयसहह तथस धसरस 202 दअ०प०सअ० कक अनतगरत परठदकत ससकठ नक पररवसदठ कक कथननकससमथरनदकयसहह।

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पररवसदठकक पररवसदपत, बयसनधसरस 200 व 202 दअ०प०सअ०वउसकक ओरसकदसधखलअदभलकखठयससकयतथसमसननठयनयसयसलयदसरसपसररत दवधध वयवसथस Flona Shrikhande v. State of Maharashtra, AIR 2014 SC 957 , it was observed as laid down under: "We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate.”

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The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits, of the case, but only consider the inherent probabilities apparent on the statement

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made in the complaint." कलददषगतरखतकहहएदवपकठगणकल धसरस 406,420,500 भस०द०सअ० कक अनतगरत तलब दकयक जसनक कस पथमदषटसआधसरपसयसजसतसहह।"

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Mr. Arpit Mishra, Amicus Curiae further submits that even the contents of the statements are considered to be true, still no offence is made out under Section 406 and 420 IPC since there is absolutely no averment in this regard that either there was any entrustment or any cheating was conducted. The learned trial court has passed the impugned order on foreign facts.

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So far as Section 500 IPC is concerned, Mr.Arpit Mishra submits that the learned trial court has not considered Exception-8 to Section 499 IPC (Defamation). For ready reference Exception-8 of Section 499 IPC is produced herein after:

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"Eighth Exception.— Accusation preferred in good faith to authorised person .—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation."

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It is evident from the contents of the complaint that complainant has filed a criminal complaint, since their names were exonerated after investigation and alleged that they were defamed.

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In view of the aforesaid circumstances, this Court is of the considered opinion that the impugned order does not legally survive since it was passed without application of mind. However, since this order is passed even without issuing notice to opposite party No.2, therefore, the matter is remitted back to learned trial court to pass a fresh order taking note of above referred observations as well as also taking note of Kishore Bal Krishna Nand vs. State of Maharashtra and another (2023) INSC 675 on issue of exception to Section 499 IPC.

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With the aforesaid observation/direction, this application under Section 482 Cr.P.C. stands disposed of .

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The Court appreciate the quick assistance given by Sri Arpit Mishra, Advocate (AOR-0438/23) as Amicus Curiae, therefore, it is directed that he be paid Rs.3,000/- by the High Court Legal Services Committee for his quick assistance.

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Registrar (Compliance) to take steps. Order Date :- 19.7.2024 LN Tripathi

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Digitally signed by :- LALIT TRIPATHI High Court of Judicature at Allahabad

Smt Shivani Tyagi and 4 Others v. State of Up and 2 Others

Case brief

What is this about?

What did the court decide?

Smt Shivani Tyagi and 4 Others v. State of Up and 2 Others

Case brief

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