1. Heard Mr. Nitin Chandra Mishra, learned counsel for the applicant and Mr. Pankaj Srivastava, learned A.G.A. for the State as well as perused the entire material available on record.
2. This application under Section 482 Cr.P.C. has been filed seeking quashing the cognizance/summoning order dated 20th January, 2020 as well as the the entire proceedings of the Criminal Case No. 51 of 2020 (State Vs. Kuldeep Agrawal & Others), arising out of Case Crime No. 0048 of 2019, under Sections 498-A, 323, 506 I.P.C., Police Station-Mahila Thana, District-Mathura, pending in the Court of Judicial Magistrate, Mathura.
3. Relevant facts for deciding the present application under Section 482 Cr.P.C. are as follows:
A first information report has been lodged by opposite party no.2, namely, Manisha Agarwal on 2nd March, 2019 at 1719 hours against six named accused persons including the present applicants alleging therein that her marriage was solemnized with applicant no.1, namely, Kuldeep Agrawal @ Deepak Kumar Agrawal on 18th June, 2005 but after some time i.e in the year 2018, the husband and in-laws of opposite party no.2 started harassing her for additional demand of dowry and on 27th June, 2018, they stripped her from their house. Against the lodging of the aforesaid first information report, all the named accused persons including the applicants approached this Court earlier by means of Criminal Misc. Writ Petition No. 7235 of 2019. A Division Bench of this Court vide order dated 15th March, 2019 referred the matter to the Allahabad High Court Mediation and Conciliation Centre for reconciliation/settlement of the dispute arose between the applicants and opposite party no.2 as well as granted interim protection to the applicants. Upon completion of statutory investigation under Chapter XII Cr.P.C., the Investigating Officer has submitted charge-sheet against the applicants under Sections 498-A, 323, 506 I.P.C. on 20th January, 2020. On submission of the aforesaid charge-sheet the concerned Magistrate by means of a common order has taken cognizance thereon and has also issued process of summons against the applicants. It is against this order and the entire proceedings of the aforesaid criminal case that the present application under Section 482 Cr.P.C. has been filed.
4.It has been submitted by learned counsel for the applicants that the first information report has been lodged with false and frivolous allegations. It is surprising that after more than 12 years of marriage of opposite party no.2 with applicant no.1, her husband and in-laws started harassing her for additional demand of dowry. The real fact is that she is a modern lady and did not want to live with her in-laws. She also does not take care her children. In order to build pressure on the applicant no.1 and his family members, she started hot talk and quarrel with the applicants and she also started beating her children. Applicant no.1 and his family members made all efforts so that she may live happily with them and take care of her children, but all efforts went in vain. Ultimately, when no option was left with applicants, applicant no.1 moved an application for restitution of conjugal rights under Section 9 of the Hindu Marriage Act before the Court by means of Suit No. 2871 of 2018, which is pending consideration. After obtaining knowledge of fling of the aforesaid suit, opposite party no.2 has engineered the present case against the applicants as a counter blast to the same.
5.Learned counsel for the applicants also submits that after submission of charge sheet the applicants have been summoned by order dated 20th January, 2020 and the court below while summoning the applicants has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualising the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the court below has not taken into consideration the material placed before the trial court along with charge sheet and, therefore, the trial court has materially erred in summoning the applicants. The court below has summoned the applicants through a routine/mechanical order, which is wholly illegal. It is next submitted that no offence as described in the F.I.R. or in the statement of the witnesses recorded during the course of investigation has taken place and the whole story as narrated in the F.I.R. as well as in the statement of the witnesses has been cooked and manufactured, therefore, the court below has materially erred in summoning the applicants, as such the orders are liable to be set aside.
6. Learned A.G.A., however, opposes the contention of learned counsel for the applicants on the ground that the court below keeping in view the charge sheet and material submitted therewith, after applying judicial mind and finding sufficient material on record, summoned the applicants to face trial and, therefore, there is nothing illegal so far as the order of summoning passed by the court below is concerned.
7. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application under Section 482 Cr.P.C.
8. It would be worthwhile to reproduce the cognizance/summoning order passed by the concerned Magistrate dated 20th January, 2020, which reads as follows:
"20.01.2020---Aaj Thana Haja se aarope patray prapt hua. Pesh hokar aadesh hua ki darj register ho. Abhiyuktgan ke virudh aarope patra me ankit dharaon me prasangyan liya jata hai. Aarope patra me varnit abhiyuktgan ke virudh sommon dinank 10.03.2020 niyat kar jari ho. Nakal taiyar ho. Patravali vaaste dene ke liye. Aarope niyat dinank to pesh ho."
9. Perusal of the aforesaid order indicates that for issuing process of summon against the applicants, the concerned Magistrate has not applied his judicial mind at least on his prima facie satisfaction. The said order is like a routine order which has been passed in mechanical manner. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner.
10. In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., reported in (2009) 2 SCC 147, this Court, in paragraph 23, held as under:
"23. It is a settled legal position that 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 proceeding against the accused."
11. In ruling M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, reported in 1998 UPCrR 118" Hon'ble Supreme Court held :-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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 in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
12. In light of the judgments referred to above, it is explicitly clear that the order dated 20th January, 2020 passed by the concerned Magistrate is cryptic and does not stand the test of the law laid down by the Apex Court. Consequently, the order dated 20th January, 2020 cannot be legally sustained, as the Magistrate failed to exercise the jurisdiction vested in him/her resulting in miscarriage of justice.
13. Accordingly, the present criminal misc. application succeeds and is allowed at the admission stage without issuing notice to the prospective opposite parties, as opposite party no.2 has no right to be heard at pre-cognizance stage. Order dated 20th January, 2020 is, hereby, quashed.
14. The Judicial Magistrate, Mathura is directed to exercise his discretionary power and decide afresh the application for summoning the applicants and pass appropriate orders in accordance with law keeping in view the observations made by this Court as well as the direction contained in the judgments referred to above within a period of two months from the date of production of a certified copy of this order.
(Manju Rani Chauhan, J.) Order Date :- 8.1.2021 Sushil/-