High Court
Case Details
Neutral Citation No. - 2024:AHC:146229 Court No. - 74 Case :- APPLICATION U/S 482 No. - 15100 of 2024 Applicant :- Mukul And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ritesh Rai,Vinod Shankar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
Legal Reasoning
I find merit in argument of learned counsel for applicants that above referred relevant part of order has not assigned any reason as such the facts of present case are squarely covered from judgment passed by this Court in Nuroozma Khan(supra) and for reference, some relevant part of it is also reproduced hereinafter :-
Arguments
Sri R.P. Srivastava, Advocate, holding brief of Sri Vinod Shankar Tripathi, learned counsel for applicants at the outset submits that this application is not pressed qua to applicant No.2-Shiv Kumar son of Gaya Prasad as he was not summoned by impugned order dated 25.03.2021 as in certified copy of it, name of Shiv Kumar though mention but it was cut. I have considered above submission and this application is dismissed as not pressed qua to applicant No.2- Shiv Kumar and now it will be considered only qua to applicant Nos. 1, 3, 4 and 5. Learned counsel for applicants further submits that impugned order is bereft of reasons required under Section 204 Cr.P.C. as learned Magistrate after reproducing contents of complaint has only referred about statements recorded under Sections 200 and 202 Cr.P.C. without even referring its content even in brief as well as no reason has been assigned that there are sufficient grounds to proceed against applicants. Learned counsel has placed reliance on a judgment passed by this Court in case of Nuroozma Khan Vs. State of U.P. and Another, 2024:AHC:108683. In order to appreciate, above submissions, I have carefully perused the impugned order and relevant part thereof is reproduced hereinafter :- "पररिववाददी नने अपनने पररिववाद कने समररन मम धवारिवा- 200 ददं०प्र०सदं० कने तहत स्वयदं एवदं धवारिवा- 202 ददं०प्र०सदं० कने तहत पदी०डब्ललू०-1 नदीरिज, पदी०डब्ललू०-2 कवाममनदी पदी०डब्ललू०-3 ककोमल कवा बयवान अदंमकत करिवायवा गयवा हहै। तरवा अमभिलनेखदीय सवाक्ष्य मम शपर पत , शदीमवान वररिष पपुललस अधदीक्षक आगरिवा कको भिनेजने गयने मशकवायतदी प्रवाररनवा पत ककी प्रमत मय पदंजदीककत डवाक समहत आमद प्रपत दवालखल मकयने गयने हहै। उपरिकोक्त पररिसस्रमतययों मम उपलब्ध सवाक्ष्य सने अमभियपुक्तगण मपुकपुल, दपुगरश, अदंमकत, इशवान्त कने दवारिवा धवारिवा 323, 354, 504, 506, 452 भिवा०ददं०सदं० कवा अपरिवाध कवाररित मकयवा जवानवा उपलब्ध सवाक्ष्य सने पररिलमक्षत हकोतवा हहै। पतवावलदी परि उपलब्ध समस्त सवाक्ष्य कने आधवारि परि मवपक्षदीगण मपुकपुल , दपुगरश, अदंमकत, इशवान्त, धवारिवा - 323, 354, 504, 506, 452 भिवा०ददं०सदं० कने अपरिवाध कने तहत मवचवारिण हनेतपु आहहत मकयने जवानने यकोग्य हहै।"
Decision
"4. The court takes note that the operative part of the impugned order is in teeth of the judgement passed by the Supreme Court in case of Lalankumar Singh and others Vs. State of Maharashtra, (2022) SCC OnLine SC 1383 the relevant part thereof is mentioned hereinafter: "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." 5. From perusal of material available on record, it appears that there is no averments of contents of statements and how offences are prima facie made out. 6. In the aforesaid circumstances, this Court exercises inherent power and impugned summoning order passed in above referred case is hereby quashed and matter is remitted back to trial Court to pass fresh order, considering the above dictum of Supreme Court. " In the aforesaid circumstances, the impugned order dated 25.03.2021 passed in Complaint Case No.692 of 2020, under Sections 323, 354, 504, 506, 452, I.P.C. passed by Judicial Magistrate, Fatehabad, Agra cannot legally survive and accordingly it is hereby set aside. The Court also takes note that Revisional Court has also not taken note about above referred facts, therefore, the other impugned order dated 15.03.2024 in Criminal Revision No.108 of 2023 passed by Revisional Court is also set aside and matter is remitted back to learned Trial Court to pass fresh order within three months. Accordingly, application is disposed of with aforesaid observation. Registrar (Compliance) to takes steps. Order Date :- 9.9.2024 P. Pandey