High Court
Case Details
Neutral Citation No. - 2024:AHC:155925 Court No. - 74 Case :- APPLICATION U/S 482 No. - 15447 of 2024 Applicant :- Aditya Kesharwani And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Indra Sen Singh,Vinod Kumar Singh Counsel for Opposite Party :- G.A.,Mohd Nasir Hon'ble Saurabh Shyam Shamshery,J.
Legal Reasoning
1. Sri Indra Sen Singh, learned counsel for applicants is looking for a judgment of this Court to assist this Court, however, luckily, a young lawyer has come up to rescue him and he has placed reliance on a judgment of this Court in Siddharth Chaddha and others v. State of U.P. and others, 2024:AHC:126579 which squarely covers present case that impugned order, which is quoted below, is an unreasoned order in terms of requirement as provided U/s 204 Cr.P.C. “Date: 16.10.2023 Case called out. The complaint has been presented by Naval Kishor against the Aditya & ors. I have perused complaint, statement of complainant u/s 200 Cr.P.C. in which it is stated that "on 03.03.2022 the wife of the applicant committed suicide. After the above incident at 10:40 pm accused No. 1, 2 and 3 came to his house and physically assaulted him. On 07.05.2022 when he came to his home then he found that the house was ransacked and the valuable objects were missing. The preliminary inquiry of the police under 202 Cr.P.C. is also supported this fact. Statement of PW-1 Neeta Pal and PW-2 Pretesh Maurya also recorded and they have supported the story of complainant. From perusal of the facts and circumstances of the complaint and all evidence available on record a prima facie case is made out under Sections 452, 323, 504, 506 IPC. Hence, accused is liable to be summoned under the said section.
Decision
ORDER Accused persons Aditya Kesarwani, Arti Kesarwani and Komal Kesarwani are summoned u/s- 452, 323, 504, 506 IPC in Case No. 185/XII of 2022 related to P.S. Kareli, Allahabad. Date is fixed 10.11.2023 for appearance of accused persons. Complainant is directed to comply provisions of 204(4) Cr.P.C. Steps be taken within 7 days.” 2. Learned counsel has also placed reliance on paragraph 13 of this application which is quoted below that there is an attending circumstance also -: “13. That apparently the present complaint case is the counter blast to aforesaid case and a device to escape from criminal liability and to deter the applicant Aditya Kesarwani from pursuing aforesaid criminal case against the complainant.” 3. In Siddharth Chaddha and others (supra), this Court has held as follows -: “2. It is well settled that to pass a summoning order is a serious affair and it becomes more serious when it is passed under Section 204 Cr.P.C. as it is passed on basis of inquiry conducted by Magistrate itself on basis of statement recorded on oath under Sections 200 and 202 Cr.P.C. 3. In this regard, relevant paragraphs of Lalankumar Singh and others Vs. State of Maharashtra, (2022) SCC OnLine SC 1383 are 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."” 4. Considering aforesaid circumstances, I find that learned Magistrate has passed impugned order without applying its judicial mind which is in the teeth of judgment of Supreme Court in Lalankumar Singh (supra) that without referring contents of the complaint and referring statements of 200 Cr.P.C. only, even without referring statements U/s 202 Cr.P.C., has summoned applicants in a cursory manner as well as attending circumstance was also not considered. 5. Accordingly, impugned order dated 16.10.2023 passed by A.C.J.M., Court-7, Allahabad in Case No. 1789/2022 (Case No. 185/XII of 2022) (Naval Kishor vs. Aditya and others) is hereby set aside. 6. Since opposite party-2 is represented by Sri Mohd. Nasir, Advocate, however, today, he is not present, therefore, this application is disposed of by remitting the matter back to concerned Court to pass a fresh order, after hearing rival parties, expeditiously and while passing fresh order, trial Court will take note of judgment of Lalankumar Singh (supra). Order Date :- 24.9.2024 N. Sinha