Court No. - 44
Case :- APPLICATION U/S 482 No. - 25296 of 2018 Applicant :- Shishupal Singh Rathore And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Tewari,Jai Prakash Rai Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Rajesh Tewari as well as the Prakash Rai, learned counsel for the applicants and the learned A.G.A. for the State.
This application under section 482 Cr. P. C. has been filed challenging the summoning order dated 12.01.2017 passed by the Judicial Magistrate, Court No. 2, Badaun, in Complaint Case No. 935 of 2015 (Smt. Sushma Chauhan VS. Shishupal and Others), under sections 447, 435, 323, 504, 506 IPC, P.S. Usawan, District Badaun, as well as the order dated 2.5.2018, passed by the District Judge, Badaun in Criminal Revision No. 33 of 2018 (Shishupal Singh and another Vs. state of U.p. and Others) whereby the aforesaid two revision filed by the applicants, challenging the summoning order 12.1.2017, has been dismissed.
Learned counsel for the applicants invited the attention of the Court to the summoning order dated 12.1.2017. He submits that the order impugned in the present application is wholly arbitrary and therefore liable to be set aside by this Court. Elaborating his submission, learned counsel for the applicant submits that the Court below has simply recorded a conclusion that on the basis of the complaint, the statement of the complainant and his witnesses, prima facie an offence under section 420 IPC appears to have been committed. The said conclusion recorded by the Court below is not preceded by a discussion of the allegations made in the complaint or the statement of the complainant and his witnesses as recorded under sections 200 and 202 Cr. P. C as well as the material submitted before the Court by the Police Officer, in compliance of the order passed by the Court asking for a police report. He, therefore, submits that in absence of any finding recorded by the Court below, upon consideration of the averments made in the complaint, the statement of the complainant and that of the witnesses as well as the police report, no prima facie satisfaction was recorded by the Court below for summoning the applicant under section 420 IPC. The revisional court has affirmed the order of the Magistrate by recording a finding that upon comparative evaluation of the statement of the complainant and his witnesses, the Magistrate has rightly summoned the revisionist i.e. the applicants herein, even when the Magistrate in his order has not even referred to the recital contained in the statement of the witnesses. As such, the revisional Court has failed to exercise the jurisdiction vested in it, resulting in miscarriage of justice.
In support of the aforesaid submission, reliance is placed upon the judgement of this Court in the case of Mahboob and others vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (All) (LB). Paragraph Nos. 10, 11 and 12 of the said judgement are relevant for the controversy in hand and are accordingly reproduced herein under:-
"(10) Hon'ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:
"14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry " has been defined under Section 2(g) of the Code, the same reads as follows:
"2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,"
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code."
(11) In the present case, the learned Magistrate has not conducted any inquiry so as to satisfy himself that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and the result of such inquiry. There is ground for proceedings against the petitioners under Section 204 CrPC. There is nothing on record to show that the learned Magistrate has applied his mind to arrive at a prima facie conclusion. It must be recalled that summoning of accused to appear the criminal court is a serious matter affecting the dignity self-respect and image in the society. A process of criminal court cannot be made a weapon of harassment.
(12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 CrPC are perused and accused are summoned such order per se itself illegal which could not stand the test of law."
Reliance is also placed upon the judgement of this Court in the case of Smt. Shiv Kumar and others vs. State of U.P. and another, reported in 2017 (2) JIC, 589, (All) (LB). Paragraph No. 10 of the aforesaid judgement is relevant for the controversy in hand. The same is as under:-
"Learned Magistrate was required to atleast mention in the order about the prima facie satisfaction for summoning the accused. The order must reflect that the learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint. The accused cannot be summoned mechanically merely by writing that perused the statements under Sections 200 and 202 Cr. P. C."
In the light of the judgements referred to above, it is explicitly clear that the impugned summoning order passed by Court below is cryptic and does not stand the test laid down by this Court.
Accordingly, the present criminal misc. application succeeds and is allowed. The impugned summoning order dated 12.1.2017 passed the Judicial Magistrate, Court No. 2, Badaun, is set aside. The Judicial Magistrate, Court No. 2, Badaun, shall pass a fresh order in the light of the observations made herein above.
With the aforesaid directions, this application is allowed.
Order Date :- 27.7.2018 Arshad