Sudhir Babu v. Urmila Dubey), under Section
Case Details
Court No. - 88 Case :- CRIMINAL APPEAL No. - 9598 of 2022 Appellant :- Urmila Dubey Widow Respondent :- State of U.P. and Another Counsel for Appellant :- Shivanand Mishra Counsel for Respondent :- G.A.,Ram Ashish Pandey Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the appellant, learned counsel for the respondent No.2 and learned A.G.A. for the State. 2. This appeal has been preferred under section 14-A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) for quashing of summoning order dated 06.03.2021, as well as order of N.B.W dated 22.08.2022, passed by the learned Special Judge, SC/ST (P.A.) Act, Court No.2, Etawah in Complaint Case No. 2800157 of 2019 (CNR No. UPEW-0100-5717-2019) (Sudhir Babu vs. Urmila Dubey), under Section 420 IPC and Section 3(1)(F) of SC/ST (P.A.) Act, P.S. Kotwali District Etawah.
Legal Reasoning
3. It has been argued by the learned counsel for the appellant that
Decision
the impugned order is against facts and law and thus, liable to be set aside. The appellant is a 70 years old widow lady and that earlier the respondent No.2 was tenant in the premises of appellant. The appellant has no issue and her husband has already passed away and that the in order to usurp property of appellant, the respondent No.2 has got prepared a forged sale-deed of her property and in that connection the appellant has lodged a first information report against the respondent No.2 and others and in that matter the respondent No.2 was sent to jail. Later on as per compromise, the respondent No.2 has executed a sale-deed in favour of one Amit, who is relative of appellant. The allegation that appellant has executed the said sale-deed is thoroughly false. It is further submitted that the respondent No.2 has got lodged the first information report of this case by moving an application under Section 156(3) Cr.P.C. After investigation, police concluded that no offence was made out against the appellant and thus, closure report was submitted. The respondent No.2 has filed a protest petition, which was registered as a complaint case and after that appellant has been summoned for offence under Section under Section 420 IPC and Section 3(1)(F) of SC/ST (P.A.) Act vide order dated 06.03.2021. Referring to facts of the matter, it was submitted that no prima facie case is made out against the appellant and thus, the impugned order is liable to be set aside. 4. Learned A.G.A and learned counsel for the respondent No.2 have opposed the appeal. Learned counsel for the respondent No.2 has argued that the respondent No.2 was tenant in the premises of appellant and that he has purchased the disputed property by paying consideration of Rs. 10 lakhs, which was arranged by him by selling jewellery of his wife but thereafter with mala-fide intention, the appellant got executed the sale-deed of the said property in favour of her relative, namely, Amit. Referring to facts of the matter it was submitted that a prima facie case is made out against the appellant and that there is no illegality or perversity in the impugned summoning order. 5. I have considered rival submissions and perused record. 6. It is well settled that at the stage of summoning the accused on the basis of a private complaint all that is required is a satisfaction by the Magistrate that there is sufficient ground to proceed against the accused in the light of the records made available and the evidence adduced by the complainant. At that stage the Magistrate has to find out whether prima facie case made out against the accused or not. The Magistrate is not required to meticulously appreciate the evidence at the stage of 203/204 Cr.P.C. All that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during preliminary enquiry under Section 200 and 202 Cr.P.C. that there is prima facie evidence in support of charge levelled against the accused. The Magistrate / Court has to see whether or not there is sufficient ground for proceedings against the accused and in that process the court is not to weigh the evidence meticulously. However, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint. 7. In Jagdish Ram v. State of Rajasthan and Another (2004) 4 SCC 432, it was held as under:- "10. ....The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." 8. In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) 5 SCC 749, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para (28), it was held as under:- "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 9. Similarly this Court in the case of Smt. Shiv Kumar and others vs. State of U.P. and another, reported in 2017 (2) JIC, 589, (All) (LB) held as under:- “Learned Magistrate was required to atleast mention in the order about the prima facie satisfaction for summoning the accused. The order must reflect that the learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint. The accused cannot be summoned mechanically merely by writing that perused the statements under Sections 200 and 202 Cr.P.C. 10. Thus, it is clear that at the stage of summoning the accused on the basis of a private complaint, the Magistrate/Court has to satisfy itself that there is sufficient ground to proceed against the accused in the light of the material on record and the evidence adduced by the complainant. The Magistrate has to find out whether a prima facie case is made out against the accused or not, and it is equally desirable that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. 11. In the instant case, perusal of record shows that earlier the respondent No.2 was tenant in the premises of the appellant. The case of appellant is that the respondent No.2 has got executed a sale-deed of her property by way of cheating and forgery and in that connection appellant has lodged first information report against the respondent No.2. The husband of appellant has already passed away and she has no issue. The first information report of this case was lodged by the respondent No.2 by inter alia alleging that he has purchased the disputed property from appellant against consideration of Rs. 10 lakhs but later on she has lodged a false case against him and that she got executed a sale-deed said property in favour of her relative Amit. Perusal of record shows that the said sale-deed has been executed by the respondent No.2 himself. The allegation that the appellant has executed the said sale-deed in favour of Amit, appears false. The attending facts and circumstances of the case clearly show that dispute between the parties is purely civil in nature. Further, there is absolutely nothing to show that any offence was committed on the ground that respondent No.2 is member of Scheduled Caste. There are absolutely no such allegation that the appellant has abused or humiliated the respondent No.2 on ground of his caste. The dispute between the parties is private and civil in nature. There is no allegation so as to constitute the offence under Section 420 IPC against the appellant. Similarly, there is no material to show applicability of Section 3(1)(F) of SC/ST Act against the appellant. It appears that the learned Court below did not consider the facts and law in correct perspective and the appellant was summoned in a routine manner. Even it was not considered whether the ingredients of the offences alleged are satisfied. Considering the entire facts of the matter, it is apparent that no prima facie case is made out against the appellant and thus, the impugned order is liable to be quashed. 12. Accordingly, the impugned summoning order dated 06.03.2021 is quashed and the complaint of respondent No.2 stand dismissed under Section 203 Cr.P.C. 13. The appeal is allowed in above terms. Order Date :- 21.2.2023 A. Tripathi Digitally signed by :- AKHILESH TRIPATHI High Court of Judicature at Allahabad