Heard Sri Ashish Raman Mishra, learned counsel for the applicants as well as learned A.G.A. for the State and perused the record.
The instant application under Section 482 Cr.P.C. is moved by the applicants to quash the entire proceeding of the Criminal Case No.4005 of 2014; Daya Shankar Vs. Ram Sanehi and others, under Sections 323, 504 and 506 I.P.C., relating to Police Station Sujauli, District Bahraich, pending in the Court of learned Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Bahraich, as well as impugned summoning order dated 30.07.2014, passed by the learned Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Bahraich and impugned revisional order dated 16.01.2020, passed by the learned 1st Additional District and Sessions Judge, Bahraich, in Criminal Revision No.185 of 2018; Amla and others Vs. State of U.P. and another.
Learned counsel for the applicants vehemently submits that the instant complaint case is nothing but a counter blast of an earlier case lodged by the mother of the applicants against the opposite party no.2 and other co-accused persons. It is further submitted that the Magistrate, while passing the impugned summoning order has not taken care of this aspect of the matter and after considering only the statement of the complainant as well as his two witnesses, have summoned the applicants to face the trail and this aspect of the matter has also not been taken care by the Revisional Court and the points raised by the applicants were not appreciated in right perspective and thus all the proceedings pending before the trial court pertaining to the instant complaint case is nothing but a abuse of process of law.
Learned A.G.A. on the other hand submits that the Magistrate after application of judicial mind has summoned the applicants to face the trial and the same could not be said to be a result of non-application of mind, as at the stage of summoning only sufficient grounds are required and the evidence is not to be appreciated, as the same is required at the time of conviction and thus there is no illegality in the order of the sub-ordinate court.
Having heard learned counsel for the parties and having perused the record, it is evident that earlier a non-cognizable report was lodged by the mother of the applicants against the opposite party no.2 and other co-accused persons and a charge sheet has already been filed after investigation against them and the contention of learned counsel for the applicants is that this aspect of the matter was not considered by the court below.
The law with regard to the summoning of the proposed accused persons to face trial is not now Res Integra and the same has been settled by a catena of decisions passed by the Hon'ble Supreme Court. There can not be any doubt in the proposition that 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 the 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 of 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 proceeding" 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 proceeding against the said accused and formation of such an opinion is to be stated in the order itself. [AIR 2015 Supreme Court 923, Sunil Bharti Mittal v. Central Bureau of Investigation, AIR 1976 Supreme Court 1947, Smt. Nagawwa v/s. Veeranna Shivalingappa Konjalgi and others, AIR 2012 Supreme Court 1747, Bhushan Kumar and Anr vs. State (NCT of Delhi) and Anr, AIR 1998 S.C. 128, M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others].
Having regard to the legal position placed above, the law which emerges out is that at the time of issuing the process and taking cognizance of the offence the Magistrate will have to keep in mind that issuance of process against the proposed persons is a serious matter and he is required to see the complaint as well as the statements of witnesses recorded under Section 202 Cr.P.C. and thus apply his judicial mind as to whether there are sufficient grounds to proceed further. It is to be clarified that the sufficiency of grounds desired is only for the purpose of proceeding further and the quality or sufficiency of the evidence is not to be so as required at the time of conviction of the accused persons. Thus the duty of the Magistrate is to see the allegations of the complaint as well as the material placed before it in the form of the statements of the witnesses and documents and then to visualize those allegations on the touch stone of probability to assess as to whether there are sufficient grounds to proceed further. The exercise which Magistrate is desired to do is certainly not required to be a meticulous exercise and it should be only for the purpose of assessing prima facie case.
Keeping in view all the facts and circumstances of the case and having regard to the law discussed herein before, I do not find that the Magistrate has made any illegality in passing the above mentioned orders, thus keeping in view the law laid down by the Hon'ble Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, 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, no interference is warranted in the order of the Magistrate whereby the applicants have been summoned to face trial.
At this juncture, learned counsel for the applicants submits that since the Magistrate has also summoned the applicants, they are apprehending that when they will appear before the Magistrate for the purpose of obtaining bail, disposal of their bail application may take a long time. In the considered opinion of this Court the apprehension of the applicants is not well founded. 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 of convicts and under trials. 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 the backdrop of aforesaid decisions and keeping in view the entirety of facts and circumstances of the case and having regard to the submissions of learned counsel for the applicants, the application is disposed of with a direction to the trial Court that if the applicants appear and surrender before the Court below within 15 days from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in accordance with law.
It is further provided that after obtaining bail in the instance matter at appropriate stage, the applicants may also move an application for their discharge and if such an application is moved at the appropriate stage, the trial court would be under an obligation to dispose of the same after providing an opportunity of being heard to the parties, in accordance with law, by passing a speaking and reasoned order.
Order Date :- 26.8.2021 Saurabh