Vinay Kumar and another v. State of U.P. and

Hon'ble Saurabh Srivastava,J.

1. Heard learned counsel for applicant and learned AGA for the State-respondent.

2. This application has been filed for quashing the impugned summoning order dated 30.09.2021 passed by learned Additional Civil Judge (J.D.), Court no. 2/Judicial Magistrate, Bijnor including the entire proceeding of Criminal Case No. 6196 of 2021 (State Vs. Islamuddin), arising out of Case Crime No. 0171 of 2020, under Section 505 I.P.C. and Section 67 of I.T. Act, P.S. Kotwali Shahar, District Bijnor.

3. Learned counsel for the applicant submits that the F.I.R. dated 29.03.2020 was lodged by the Sub Inspector of the concerned police station against unknown person alleging therein that the accused person was spreading rumors by sending false messages which created a feeling of anger in Muslim community and violated Covid-19 protocol. After lodging of F.I.R., the Investigating Officer conducted the investigation. After investigation, the Investigating Officer submitted charge sheet against the applicant whereupon the learned court concerned took cognizance and summoned the applicant in arbitrary manner and without considering the material available on record.

4. Learned counsel for the applicant submits that vide order dated 08.10.2021 passed by a Division Bench of this Court in Criminal Misc. Writ Petition No. 7787 of 2021 (Vinay Kumar and another Vs. State of U.P. and 2 others), this Court directed the State Government to frame a time schedule for completing the exercise for withdrawal of COVID-19 protocol breach cases in terms of decision taken by the State Government/ guidelines of Central Government and withdraw cases found worth withdrawal in accordance with law, expeditiously preferably within a period of three months and file a compliance report. Learned counsel for the applicant further argued that as per Government Order dated 26.10.2021, petty cases were directed to be withdrawn by the Public Prosecutor in the courts but still the case is pending against the applicant, which causing unnecessary harassment to him.

5. Per contra, learned AGA vehemently opposed the prayer as made in the application by way of submitting that the contentions, which are sought to be raised on behalf of applicant, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the time of summoning the applicant, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.

6. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of taking cognizance/summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241, it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". At the stage of taking cognizance, a court's primary focus is to determine if a prima facie case exists, meaning whether there is sufficient evidence to suggest that an offense has been committed, and not to delve into the merits of the case or the evidence.

7. The aforementioned legal position has also been considered in a recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another).

8. From the perusal of the material available on record in shape of the order dated 08.10.2021 passed by a Division Bench of this Court in Criminal Misc. Writ Petition No. 7787 of 2021 (Vinay Kumar and another Vs. State of U.P. and 2 others), the State Government vide its notification dated 26.10.2021 directed the concern authorities to withdraw the cases which were lodged during Covid-19 protocol in which maximum punishment is below two years, but in the instant matter the applicant is implicated under Section 505 I.P.C. and Section 67 of I.T. Act. It is crystal clear that under Section 505 IPC, punishment can include imprisonment up to three years, a fine, or both. If such an offense is committed in a place of worship, the imprisonment can extend to five years with a fine. So far as Section 67 of I.T. Act is concerned, the accused person be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. As such, at this stage, it cannot be said that no offence is made out against applicant. All the submission made at the bar, relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 528 BNSS.

9. On aforesaid reason, the present application is devoid of merit and, hence, the same is dismissed. Order Date :- 13.8.2025 #Vik/- VIKRAM GUPTA High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard learned counsel for applicant and learned AGA for the State-respondent.

2. This application has been filed for quashing the impugned summoning order dated 30.09.2021 passed by learned Additional Civil Judge (J.D.), Court no. 2/Judicial Magistrate, Bijnor including the entire proceeding of Criminal Case No. 6196 of 2021 (State Vs. Islamuddin), arising out of Case Crime No. 0171 of 2020, under Section 505 I.P.C. and Section 67 of I.T. Act, P.S. Kotwali Shahar, District Bijnor.

3. Learned counsel for the applicant submits that the F.I.R. dated 29.03.2020 was lodged by the Sub Inspector of the concerned police station against unknown person alleging therein that the accused person was spreading rumors by sending false messages which created a feeling of anger in Muslim community and violated Covid-19 protocol. After lodging of F.I.R., the Investigating Officer conducted the investigation. After investigation, the Investigating Officer submitted charge sheet against the applicant whereupon the learned court concerned took cognizance and summoned the applicant in arbitrary manner and without considering the material available on record.

4. Learned counsel for the applicant submits that vide order dated 08.10.2021 passed by a Division Bench of this Court in Criminal Misc. Writ Petition No. 7787 of 2021 (Vinay Kumar and another Vs. State of U.P. and 2 others), this Court directed the State Government to frame a time schedule for completing the exercise for withdrawal of COVID-19 protocol breach cases in terms of decision taken by the State Government/ guidelines of Central Government and withdraw cases found worth withdrawal in accordance with law, expeditiously preferably within a period of three months and file a compliance report. Learned counsel for the applicant further argued that as per Government Order dated 26.10.2021, petty cases were directed to be withdrawn by the Public Prosecutor in the courts but still the case is pending against the applicant, which causing unnecessary harassment to him.

5. Per contra, learned AGA vehemently opposed the prayer as made in the application by way of submitting that the contentions, which are sought to be raised on behalf of applicant, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the time of summoning the applicant, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.

6. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of taking cognizance/summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241, it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". At the stage of taking cognizance, a court's primary focus is to determine if a prima facie case exists, meaning whether there is sufficient evidence to suggest that an offense has been committed, and not to delve into the merits of the case or the evidence.

7. The aforementioned legal position has also been considered in a recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another).

8. From the perusal of the material available on record in shape of the order dated 08.10.2021 passed by a Division Bench of this Court in Criminal Misc. Writ Petition No. 7787 of 2021 (Vinay Kumar and another Vs. State of U.P. and 2 others), the State Government vide its notification dated 26.10.2021 directed the concern authorities to withdraw the cases which were lodged during Covid-19 protocol in which maximum punishment is below two years, but in the instant matter the applicant is implicated under Section 505 I.P.C. and Section 67 of I.T. Act. It is crystal clear that under Section 505 IPC, punishment can include imprisonment up to three years, a fine, or both. If such an offense is committed in a place of worship, the imprisonment can extend to five years with a fine. So far as Section 67 of I.T. Act is concerned, the accused person be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees. As such, at this stage, it cannot be said that no offence is made out against applicant. All the submission made at the bar, relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 528 BNSS.

9. On aforesaid reason, the present application is devoid of merit and, hence, the same is dismissed. Order Date :- 13.8.2025 #Vik/- VIKRAM GUPTA High Court of Judicature at Allahabad