Sanju Devi v. Santaram) before the Additional Civil Judge Junior Division
Case Details
Neutral Citation No. - 2024:AHC:150123 Court No. - 74 Case :- APPLICATION U/S 482 No. - 16391 of 2024 Applicant :- Santram Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Kumar Singh Counsel for Opposite Party :- G.A. 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." 6. In view of above discussion, I find that it is a fit case where inherent powers of this Court could be exercised. 7. Accordingly, impugned order dated 19.05.2023 passed by Chief Judicial Magistrate, Court No. 3, Gorakhpur, in Complaint Case No. 19364/2021 (Sanju Dev Vs. Santram), under Sections 498A, 323 I.P.C., Police Station- Gida, District- Gorakhpur is hereby set aside and matter is remitted back to pass a fresh order. 8. It is directed that District Judge, Gorakhpur, will call an explanation from concerned officer who has passed above referred order not only closing his judicial mind by his eyes also. 9. A copy of this order be supplied to Hon’ble Administrative Judge, Gorakhpur in regard to nature of orders passed by concerned Officer.
Arguments
1. Heard Mr. Rajesh Kumar Singh, learned counsel for applicant. 2. Learned counsel for applicant in support his submissions has placed paragraph nos. 11, 15, 16 and 17 of this application which are reproduced hereinafter:- "11- That applicant isn't husband of O.P. no. 2 nor he solemnize marriage to O.P. no. 2 only to grab the money of the applicant she moved a complaint against the applicant to falsely implicate and harass him. 15- That relevant to mention here that O.P. no.2 is wife of Munna lal and with wedlock of Munna Lal one Shashi Kant was born and she is native of village Bayaran Nyaya panchayat Semra, Block & Tehsil Khalilabad, District Santkabir Nagar. In this connection a true & type copy of the Parivar register issued by the Gram Panchayat Adhikari dated 18.05.2023 is being filed herewith and marked as Annexure no.8 to this affidavit. 16- That O.P. no. 2 is taking widow pension from Social Welfare Scheme under the Uttar Pradesh Government bearing registration no. 31741002339 and account no. 11489722520 from the district Santkabir Nagar as residence of Sant Kabir Nagar Khalilabad, Bayara from State Bank of India Magahar, in which name of husband of O.P. no. 2 mention as Munna Lal. In this connection a true & photo state copy of the widow pension under the Social Welfare Pension Scheme issued by Uttar Pradesh Government of financial year 2016- 17 at serial no. 20, 2017-18 at serial no. 22, 2018-19 at serial no. 30, 2021-22 serial no. 29, 2022-23 serial no. 41 in which name of husband is mention and Munna Lal and he continuously taking widow pension to state government of U.P. under the scheme of Social Welfare Pension Scheme is being filed herewith and marked as Annexure no.9 to this affidavit. 17- That O.P. no. 2 also moved an complaint U/S 12 Protection of Women from Domestic Violence Act, 2005 as case no. 2674/2016 (Sanju Devi Vs. Santaram) before the Additional Civil Judge Junior Division/F.T.C./ Additional Chief Judicial Magistrate, Gorakhpur on 04.08.2016, learned Additional Civil Judge Junior Division/F.T.C./ Additional Chief Judicial Magistrate, Gorakhpur rejected the compliant of O.P. no. 2 on 30.01.2021. In this connection a true & photo state copy of the order dated 30.01.2021 passed by Additional Civil Judge Junior Division/F.T.C./ Additional Chief Judicial Magistrate, Gorakhpur is being filed herewith and marked as Annexure no. 10 to this affidavit." 3. This Court has again encountered with an unreasoned impugned summoning order wherein neither facts nor date of occurrence nor contents of complaint nor contents of statements recorded are mentioned and still applicants are summoned. For reference, relevant part of impugned order is quoted below -: "19.05.2023 पततवलल आददशतरर ननयत हह। पररवतदल कद नवदतन अधधवकत कद तकर कक पपवर ननयत नतधर पर ससनत एवव आददश हदतस पततवलल कत अवलककन नकयत। पररवतदल कक तरफ सद पररवतदल नद अपनत बयतन धतरत-200 तहत तरत धतरत-202 दव०प०सव० मम कस ससम ददवल व नदललप कक परलनकत करतयत हह तरत दसततवदजल सतकय मम पसधलस कपतन कक पदनषत पतररनत पत, दव०प०सव० कद रधजसटटल रसलद व अनय पपत इतयतनद दतधखल नकयत गयत हह। पररवतदल नद अपनद बयतन अनतगरत धतरत-200 दव०प०सव० कद तहत पररवतद पत कत समररन नकयत गयत हह। इस तथय कत समररन पररवतदल कक तरफ सद पसतसत सतकल कस ससम ददवल व नदललप नद अपनद बयतन अनतगरत धतरत-202 दव०प०सव० मम नकयत हह। पररवतदल व उसकक तरफ सद पसतसत सतकल कद बयतन कद आधतर पर अनभयसक सवतरतम कद नवरद धतरत 498 ए, 323 भत०दव०सव० कद तहत परम दषयत मतमलत बनतत हह। अतएव उपरकक अनभयसक तलब नकयद जतनद यकगय हह। अनय धतरतओव मम तलब नकयद जतनद कत परम दषयत आधतर पयतरप नहह हह। आददश अनभयसक सवतरतम कद नवरद धतरत- 498 ए, 323 सममन आहहत नकयत जततत हह। पररवतदल दतरत धतरत-204 (2) भत०दव०सव० कद तहत जररए तत (4) कत अनसपतलन करनद पर अनभयसक कद नवरद सममन जतरल हक। पररवतदल इस सवबवध मम आवशयक पहरबल करद। पततवलल वतसतद उपससरनत अनभयसक नदनतवक- 26.06.2023 कक पदश हक।" 4. This Court has already taken a serious note of similar summoning order passed in Bangali Rathore and 3 others vs. State of U.P. and another, 2024:AHC:118989. 5. A judgment of Supreme Court in Lalankumar Singh and another vs. State of Maharashtra, 2022 SCC Online SC 1383 is relevant on this issue and its relevant paragraphs are mentioned below -:
Decision
10. Application is, accordingly, disposed of. 11. Registrar (Compliance) to take steps. Order Date :- 13.9.2024 Saurabh