H I GH COURT OF UTTA RA N CH TA L v. St at e of Ut t aranchal

t he m agist rat e sum m oning t he accused m ust reflect t hat he has applied his m ind t o t he fact s of t he case and t he law applicable t heret o. He has t o exam ine t he nat ure of allegat ions m ade in t he com plaint and t he evidence bot h oral and docum ent ary in support t hereof and would t hat be sufficient t he com plainant t o succeed in bringing charge hom e t o t he accused. I t is not t hat t he Magist rat e is a silent spect at or at t he t im e of recording of prelim inary evidence before sum m oning of t he accused. Magist rat e has t o carefully scrut inize t he evidence brought on record and m ay even him self put quest ions t o t he com plainant and his wit nesses t o elicit answers t o find out t he t rut hfulness of t he allegat ions or ot herwise and t hen exam ine if any offence is prim a facie com m it t ed by all or any of t he accused. " 4 ) The above pr oposit ion of law clearly em phasizes t hat t he Magist rat e, while sum m oning t he accused or t ak ing t he cognizance, should scrut inize t he evidence and put t he quest ions t o all t he w it nesses as well as t o t he com plainant . 5 ) I n v iew of t he above, t he sum m oning order passed by t he learned Magist rat e is liable t o be set aside. The Magist rat e should have put t he quest ion t o t he com plainant and his w it nesses t o know t he veracit y of t he incident . I t is also adm it t ed case t hat t here is disput e w it h regard t o t he t ract or t rolley pending in bet ween t he part ies. The Magist rat e should have verified by put t ing quest ions as t o whet her t he present com plaint is act ually a count er- blast or as t o whet her t he incident t ook place or not . 6 ) Therefore, t he sum m oning or der dat ed 15.4.2005 passed by t he Judicial Magist rat e, Lak sar, Dist r ict Haridwar in cr im inal com plaint case No.162/ 2005 under sect ions 452, 323, 504, 506 I PC and order dat ed

16.12.2005 passed by Addl. Sessions Judge, Haridwar in crim inal rev ision No.175/ 2005 are set - aside. The case is rem it t ed back t o t he learned Magist rat e t o decide t he sam e afresh in t he light of t he observat ions m ade above. 7 ) The pet it ion is disposed of accor dingly. The m isc. applicat ion, if any, is also disposed of. Dat ed 21.04.2006 LSR ( J.C.S. Ra w a t , J.)