On the matter being taken up, on 19.01.2021, following order was passed by this Bench:-
" Heard Mr. Sanjeev Kumar Khare, 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.
This application under Section 482 Cr.P.C. has been filed seeking quashing the charge-sheet dated 16th April, 2019, cognizance/summoning order dated 18th September, 2019 as well as the the entire proceedings of the Criminal Case No. Nil of 2019 (State Vs. Mainuddin & Others), arising out of Case Crime No. 0637 of 2018, under Sections 498-A, 504, 506 I.P.C. as also under Sections 3/4 D.P. Act, Police Station-Mahila Thana, District-Prayagraj pending in the Court of Additional Chief Judicial Magistrate, Court No.17, Allahabad.
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.
Learned A.G.A. has opposed the submissions made by the learned counsel for the applicants on the merits of the aforesaid criminal case but he support the second submission of the learned counsel for the applicants that the order passed by the Additional Chief Judicial Magistrate has materially erred in summoning the applicants through a routine/mechanical order, which is per se illegal.
It would be worthwhile to reproduce the cognizance/summoning order passed by the concerned Magistrate dated 18th September, 2019, which reads as follows:
"18.09.2019---Aaj aarope patra prapt hua. Aarope patra va case diary va anya prapatron ke avalokan se pratham distaya abhiyuktgan (1)Mainnudin (2) Shayara Begum (3) Mohd. Afzal dwara aparadh dhara-498(A), 504, 506 I.P.C. va 3/4 DP Act karit hona pratit hota hai. Prarsangyan liya jata hai, darj register ki nakal taiyar hai. Abhiyuktgan ko summon dinank 6.11.19 ke liye jari ho."
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.
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."
In ruling M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, reported in 1998 UPCrR 118", the Apex 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."
From the aforesaid, this Court finds that the summoning order dated 18th September, 2019has been passed by the Additional Chief Judicial Magistrate, Court No.17, Allahabad without application of mind at least on its prima facie satisfaction. This Bench and various other Benches of this Court on judicial side have passed orders directing the subordinate courts to pass such cognizance/summoning orders with application of mind giving satisfactory reasons and also restraining them from passing such summoning orders in a routine manner without application of mind.
Normally this Court would have set aside such summoning orders and directed the court below to pass a fresh orders by giving reasons, but this Court finds that despite repeated orders of this Court on judicial side, everyday various applications under Section 482 Cr.P.C. are being filed before this Court challenging such summoning orders passed in a routine and mechanical manner which takes precious time of this Court.
This Court does not expect from a judicial officer, who is a Judge and acts like a God. How will a normal man get justice when a judge makes a mistake while passing such summoning order in a routine and mechanical manner? At the present time, only from the temple of justice like Courts, everyone hopes for right and fair justice.
This Court, therefore, directs the Additional Chief Judicial Magistrate, Court No.17, Allahabad to appear before this Court on 28th January, 2021 along with his explanation as to why such orders are being passed, despite various orders of this Court and why this Court may not take action him/her for the aforesaid negligence.
Let this matter be put up on 28th January, 2021 as fresh.
The Registrar General is directed to communicate this order to the District Judge, Allahabad within 48 hours for necessary compliance.
Till the next date of listing, no coercive action shall be taken against the applicants."
Pursuant to the above order, a letter has been sent by the Additional Chief Judicial Magistrate, Court No.17, Allahabad on 27.01.2021, in which, explanation has been given. In the explanation given by the concerned Magistrate, she has accepted the mistake and has tendered her unconditional apology for the same.
The explanation given by the concerned Magistrate is not acceptable because if a Judge makes such a mistake, then from where will the general public get fair justice. A Judge acts like a God, he should not make mistakes due to haste or excess of work. How will a normal man get justice when a judge makes a mistake because of the excess of his work? At the present time, only from the temple of justice like Courts, everyone hopes for right and fair justice.
However, it would not be in the interest of justice to proceed further against the concerned Magistrate, keeping the present application pending. Therefore, this Court warns the concerned Judicial Magistrate to remain more careful and cautious in future while passing any judicial orders. The District Judge, Allahabad shall ensure that such orders on a printed proforma are not passed by any judicial officers of Judgeship Allahabad.
Now this Bench comes on the merits of the present application.
This application under Section 482 Cr.P.C. has been filed seeking quashing the charge-sheet dated 16th April, 2019, cognizance/summoning order dated 18th September, 2019 as well as the the entire proceedings of the Criminal Case No. Nil of 2019 (State Vs. Mainuddin & Others), arising out of Case Crime No. 0637 of 2018, under Sections 498-A, 504, 506 I.P.C. as also under Sections 3/4 D.P. Act, Police Station-Mahila Thana, District-Prayagraj pending in the Court of Additional Chief Judicial Magistrate, Court No.17, Allahabad.
Today, learned counsel for the applicants has confined his relief to set aside the cognizance/summoning order dated 18.09.2019. Learned counsel for the applicants submits that the cognizance/summoning order dated 18.09.2019 has been passed by the learned Additional Chief Judicial Magistrate, Court No.17, Allahabad without applying his judicial mind on a printed format and the same is vague, ambiguous and nullity. He next submits that the perusal of the cognizance/summoning order indicates that except for directing the office to summon the applicants, absolutely no reasons have been mentioned in support thereof. He further submits that it is settled law that every orders are to be judged on reasons recorded therein. He therefore, submits that cognizance/summoning order be set aside.
Learned A.G.A. does not dispute the correctness of the submissions made by the learned counsel for the applicants and he has no objection if the cognizance/summoning order is set aside.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application. It is an admitted position that the cognizance/summoning order dated 18.09.2019 has been passed without application of mind on a printed format. Such summoning orders passed on a printed proforma has already been set aside by this Court while passing a detailed order dated 11th November, 2020 in Application U/S. 482 No. 41617 of 2019 (Vishnu Kumar Gupta & Another Vs. State of U.P. & Another).
Accordingly, for the reasons recorded in the case of Vishnu Kumar Gupta (Supra), cognizance/summoning order dated 18.09.2019 is set aside. The Additional Chief Judicial Magistrate, Court No.17, Allahabad after perusing the entire records shall pass a fresh speaking and reasoned order, in accordance with law, preferably within two months from the date of production of a certified copy of this order.
With the aforesaid directions/observations, this application stands allowed.
Office is directed to send a copy of this order to the Additional Chief Judicial Magistrate, Court No.17, Allahabad. within a week.
Order Date :- 9.2.2021 JK Yadav