Heard Shri Ashok Kumar Verma, learned counsel for applicant as well as Shri Rajesh Kumar-I, learned Additional Government Advocate for the State and perused the record.
The instant petition has been moved under Section 482 Cr.P.C. by the applicant with the prayer to quash the summoning order dated 08.02.2017 passed by the Judicial Magistrate, Unnao in Complaint Case No.2007/2014 (Ved Prakash Mishra v. Aditya Prakash and others) as well as order dated 11.12.2020 passed by the Additional Sessions Judge, Court no.2, S.C./S.T. Act, Unnao in Criminal Revision No.20/2017 (Aditya Prakash Mishra v. State of U.P. & Others).
Learned counsel for applicant while referring to the various documents and the statement of the complainant and his witness recorded under Sections 200 and 202 Cr.P.C. as well as referring to the judgments of the revisional court submits that both the revisional court as well as trial court has committed manifest illegality in summoning the applicant to face the trial under Section 380 I.P.C. The magistrate has not followed the mandate of the law enshrined under Section 202(1) Cr.P.C. and therefore, all the proceedings pending before the court below is an abuse of the process of law and, therefore, the summoning order as well as the whole proceedings of the above mentioned case be quashed.
Learned A.G.A. on the other hand submits that all the submissions which has been made at the bar relates to the disputed question of facts and the same could not be adjudicated by this Court while exercising the jurisdiction under Section 482 Cr.P.C.
Having heard learned counsel for the parties and having perused the record, it appears that the impugned order has been passed by the magistrate concerned after taking into cognizance the earlier order of the revisional court. So far as the contention of the learned counsel for the applicant pertaining to the non compliance of Section 202(1) of the Cr.P.C. is concerned, it is evident in the order of the magistrate that instead of referring to the matter to any other agency for the purpose of investigation or for inquiry, he has taken the burden of inquiring the case himself and therefore, no illegality appears to have been committed by the magistrate.
So far as the submissions of the learned counsel for the applicants pertaining to the non sufficiency of the material available on record for the purpose of summoning under Section 380 I.P.C. is concerned, the law with regard to the summoning of the accused persons pertaining to the complaint case is not now res integra. The same has been settled in catena of decisions of the Hon'ble Supreme Court.
Having regard to the following case laws passed by the Hon'ble Supreme Court there could not be any doubt in proposition that cognizance of offence on complaint is taken only for the purpose of issuing process to the accused. The cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. 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 produced in support thereof and would that be sufficient to proceed further. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course and in coming to a decision as to whether the process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. At the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate, at that stage, to enter into a detailed discussion of the merit or demerits of the case. A wide discretion thus has been given to the Magistrate so 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 and 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. However, the words "sufficient grounds for proceedings" appearing in the Section 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 proceedings against the said accused and formation of such an opinion is to be stated in the order itself. [AIR 2015 SC 923, Sunil Bharti Mittal Vs. Central Bureau of Investigation, AIR 1976 SC 1947, Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & Ors., AIR 2012 SC 1747, Bhushan Kumar and Anr. Vs. State (NCT of Delhi) and Anr., AIR 1998 SC 128, M/s Pepsi Foods Ltd. and Anr. Vs. Special Judicial Magistrate and Ors.] From the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against petitioners. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 Cr.P.C. At this stage only primafacie case is to be seen in the light of the law laid down by Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, A.I.R. 1976 Supreme Court, 1947, M/s.Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, AIR 1998, S.C. 128, U.P.Polution Control Board v. Dr. Bhupendra Kumar Modi and Anr. MANU/SC/8395/2008: (2009) 2 SCC 147, Sunil Bharti Mittal v. Central Bureau of Investigation, AIR 2015 Supreme Court, 923, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq, another (Para-10) 2005 SCC (Cr.) 283 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843.
Therefore, keeping in view the facts and circumstances of the case, the prayer for quashing the summoning order as well as all proceedings pending before the trial court of the aforesaid case is hereby refused.
A seven judges Bench of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 and Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC) and in Hussain and Ors. Vs. Union of India (UOI) and Ors. reported in MANU/SC/0274/2017 have given various directions to criminal Courts for expeditious disposal of Bail applications. The ratio of above mentioned decisions is quite clear that, in the backdrop of Article 21 of the Constitution of India as the personal liberty of a person is at stake, the bail applications should be decided, expeditiously.
In backdrop of aforesaid decisions and keeping in view the entirety of facts and circumstances of the case and having regard to the request of learned counsel for the applicant, the application is disposed of with direction to the trial court that if petitioner appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided expeditiously in accordance with law.
It is further provided that after obtaining regular bail if any application under Section 239 Cr.P.C. is moved by the applicant for the purpose of his discharge, it shall be obligatory on the part of the magistrate to dispose of that application by a reasoned and speaking order, after providing an opportunity of being heard to the parties, in accordance with law.
The trial court while considering the plea of bail of the applicant would also pay due regard to the fact that the offence is triable by the magistrate and the applicant has been summoned in the complaint case.
Order Date :- 30.7.2021 Anupam S/-