Smt. Tarang Sharma v. Sushil Kumar Sharma) as well as summoning order dated
Case Details
Neutral Citation No. - 2024:AHC:110234 Court No. - 74 Case :- APPLICATION U/S 482 No. - 2057 of 2024 Applicant :- Colonel Sushil Kumar Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sumit Daga Counsel for Opposite Party :- G.A.,Srijan Pandey Hon'ble Saurabh Shyam Shamshery,J.
Legal Reasoning
"38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609 which reads thus: "51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. 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. 53. However, the words "sufficient ground for proceeding" appearing in Section 204 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. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect." Sachin Garg (supra) “18. While it is true that at the stage of issuing summons a magistrate only needs to be satisfied with a prima facie case for taking cognizance, the duty of the magistrate is also to be satisfied whether there is sufficient ground for proceeding, as has been held in the case of Jagdish Ram (supra). The same proposition of law has been laid down in the case of Pepsi Foods Ltd. and Anr. -vs Special Judicial Magistrate and Ors. [(1998) 5 SCC 749]. The learned Magistrate's order issuing summons records the background of the case in rather longish detail but reflects his satisfaction in a cryptic manner....” 4. Relevant part of impugned order is mentioned hereinafter: "पररिववाद पत्र कके अवललोकन सके स्पष्ट हहै ककी पररिववाददननी एववं दवपकनी कके मध्य वहैववादहक प्रकक दति कवा हहै। पररिववाददननी ककी गहैरि हवाजजिरिनी मम दवारिवा पररिववाददननी व उसकके पपुत्रत्रों कवा समस्ति ककीमतिनी सवामवान , नकद, जिकेवरि, दलो कवारि अपनके कब्जिके मम करि जलए गए हह। पररिववाददननी कके बच्चत्रों ककी जजिम्मकेदवारिनी पपूररतितः पररिववाददननी परि हहै तिथवा दवपकनी दवारिवा दकसनी भनी प्रकवारि कवा सपलोरर पररिववाददननी कके पवास नहहीं हहै। पररिववाददननी दवारिवा अपनके बयवावान अवंतिगरति धवारिवा 200 मम इन्हनी कथनत्रों कवा समथरन दकयवा गयवा हहै तिथवा पररिववाददननी ककी ओरि सके भकेजिवा गयवा लनीगल नलोदरस तिथवा दवपकनी दवारिवा ववापस दकयके गए नलोदरस आदद प्रपत्र दवाजखिल दकयके गए हह। पररिववाददननी नके अपनके पररिववाद कके कथनत्रों कके समथरन मम धवारिवा 200 दवं०प्र०सवं० कके तिहति बयवावंन अवंदकति करिवायवा हहै तिथवा दस्तिवावकेजिनी सवाक्ष्य दवाजखिल दकयवा हहै। इस प्रकवारि प्रथम दृष्टवा दवपकनी दवारिवा धवारिवा 406 भवारितिनीय दवंड सवंदहतिवा अमवानति मम खियवानति कवा अपरिवाध कवाररिति दकयवा जिवानवा प्रतिनीति हलोतिवा हहै। अतितः पररिववाददननी कके कथनत्रों , बयवावंन एववं सवाक्ष्यत्रों कके आधवारि परि दवपकनी कके दवरुद्ध प्रथम दृष्टवा धरिवा 406 भवारितिनीय दवंड सवंदहतिवा कवा मवामलवा बनतिवा प्रतिनीति हलोतिवा हहै, जजिसकके दवचरिर हकेतिपु दवपकनी कलो तिवालवाब दकयवा जिवानवा उदचति प्रतिनीति हलोतिवा हहै।" 5. Above referred impugned order does not indicate how offence under Section 406 IPC is made out as factum of entrustment is neither referred nor considered and, therefore, it is in the teeth of aforesaid judgments passed by Supreme Court in Lalankumar Singh (supra) and Sachin Garg (supra). 6. Learned counsel appearing for Complainant as referred statement of Complainant recorded under Section 200 Cr.P.C. as well as some other documents including notice, however, the same is not reflected in impugned order. 7. In aforesaid circumstances, impugned summoning order dated 07.12.2023 cannot sustain and it is hereby set aside. However, considering that there are material on record, therefore, matter is remanded back to Trial Court to pass a fresh order in accordance with law expeditiously. 8. Registrar (Compliance) to take steps. Order Date :- 8.7.2024 AK
Arguments
1. Heard Sri Sumit Daga, learned counsel for applicant and Sri Srijan Pandey, Advocate for Complainant. 2. The present application under Section 482 Cr.P.C. has been filed for quashing of entire proceedings of Complaint Case No. 22521 of 2023 (Smt. Tarang Sharma vs. Sushil Kumar Sharma) as well as summoning order dated 07.12.2023 passed by Judicial Magistrate/ Additional Civil Judge (Junior Division), Court No. 5, Meerut, under Section 406 IPC, Police Station Sadar Bazaar, District Meerut. 3. It is well settled that process of summoning is a serious affair and for that Magistrate concerned has to pass an order carefully on basis of material available and order of summoning should assign sufficient ground to proceed. In this regard, it would be relevant to mention few paragraphs of judgments passed by Supreme Court in Lalankumar Singh and others vs. State of Maharashtra, 2022 SCC OnLine SC 1383 and Sachin Gang vs. State of U.P. and another, 2024 INSC 72, as under: Lalankumar Singh (supra)