Court No. - 91
Case :- APPLICATION U/S 482 No. - 7962 of 2007 Applicant :- Smt. Anuradha Verma And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dharmendra Kumar,N.C.Tripathi Counsel for Opposite Party :- Govt. Advocate
Hon'ble Brij Raj Singh,J.
Heard Sri N.C. Tripathi, learned counsel for applicants and learned AGA for the State and perused the record.
This application under Section 482 Cr.PC has been filed by applicants to set aside the criminal proceeding of Complaint Case No. 5954 of 2004 (P.P. Mishra Vs. Mahesh Chandra Verma and another) under Sections 323, 504, 506, 427 and 406 I.P.C., P.S.-Kareili, District-Allahabad, pending in the Court of Additional Chief Judicial Magistrate- VI, Allahabad.
The complaint has been filed by opposite party No. 2 against the applicants making certain allegations. The statements under Sections 200 and 202 were recorded before the Magistrate. The Magistrate has issued the summons against applicants vide order dated 19.1.2005, which is challenged by the applicants.
Learned AGA has submitted that there is no illegality in the summoning order dated 19.1.2005.
I have gone through the record and heard learned counsel for applicants and learned AGA for the State.
The main thrust of learned counsel for applicants is that the order passed by the Magistrate is non-speaking order and he has not applied his mind and not recorded his reasons as to why he is satisfied to summon the accused.
After going through the records, I also see that Magistrate has not applied his mind and he has not recorded the evidences and without passing speaking order, summoning order has been passed in mechanical manner. The order appears to be cryptic.
The similar matter has been dealt with in catena of decisions. The following pertinent observations are worth to be mentioned as enunciated in Mahboob & Others Vs. State of U.P. & Another 2017 98 AllCriC 593 :
"the steps taken by the Magistrate under 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure or mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment." Emphasis added. ""
In view of the aforesaid legal proposition, I am also of the view that the summoning order dated 19.1.2005 as contained in Annexure-5 is liable to be quashed. It is further directed that the matter is remanded back to Magistrate to pass a fresh order in accordance with law after applying his mind.
Applicant will submit the computer generated photo copy of this order within two weeks before the court concerned from today.
Accordingly, the instant application is disposed of. Order Date :- 29.10.2021 Md Faisal