Allahabad High Court · 2025

1. Heard Sri Saurabh Kumar Pandey, learned counsel for the applicants and Sri Satyendra Tiwari, learned AGA for the State.

2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 20.04.2024 as well as the entire proceeding of Complaint Case No. 162 of 2024 (State vs. Sadaruddin and others), under Sections 323, 504 IPC, P.S. Tarwan, District Azamgarh, pending in the court of Village Court, Tehsil-Mehnagar, District Azamgarh.

3. Learned counsel for the applicants submits that initially in the instant case, an NCR was lodged by the opposite party no.2 on 10.09.2021 under Sections 323, 504 IPC. After seeking permission under Section 155(2) Cr.P.C., the investigation was conducted in the instant case and the charge sheet was filed against the applicant herein for the offence under Sections 323, 504 IPC. Thereafter the learned Magistrate vide order dated 26.11.2022 has taken cognizance in the said charge sheet and summoned the applicants herein. The said summoning order was challenged by the applicants by filing an Application under Section 482 No. 39765 of 2023. The Co-ordinate Bench of this Court took a view that when a charge sheet is filed only for non-cognizable offence under Sections 323, 504 IPC, the Magistrate was required to treat the said charge sheet a complaint case. In view thereof, the Co-ordinate Bench of this Court vide order dated 24.11.2023 quashed the cognizance / summoning order dated

26.11.2022 and the matter was remanded back to the trial court concerned to pass fresh order treating the charge sheet dated 08.07.2022 as a complaint and follow the procedure prescribed for hearing of the complaint case. After remand, vide impugned order dated 20.04.2024, the learned Magistrate has again passed the order treating the charge sheet as a complaint case and simultaneously summoned the applicants herein for the offence under Sections 323, 504 IPC.

4. Learned counsel for the applicants submits that even in the impugned order dated 20.04.2024 the Magistrate has not discussed the accusations made against the applicants nor has recorded its satisfaction whether from the accusations made, a prima facie case is made out against the applicants which is a minimum requirement before summoning of the accused in the complaint case. In support of his submissions, he has relied upon the judgment of Apex Court in Fakhruddin Ahmad vs. State of Uttaranchal and another, 2009 (64) ACC 774, wherein the Apex Court has held as under: "15. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."

5. Learned counsel for the applicants has also relied upon the judgment dated

22.12.2023 passed by Co-ordinate Bench of this Court in Application under Section 482 No. 46986 of 2023, in which it has been held as under: "8. From perusal of the impugned order it appears that before taking cognizance the learned Magistrate has neither taken into consideration the nature of accusations nor he has made any any effort to satisfy himself as from the materials collected during investigation and keeping in view the nature of the allegations made against the applicants any offence under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 of DP Act was disclosed or not."

6. He has also relied upon another judgment of this Court in Hari Ram Verma and 4 others vs. State of U.P. and another, 2017 (99) ALL CC 104, wherein the following observations have been made: "7. A perusal of this impugned summoning order indicates that learned Magistrate had noted in the impugned order the contents of complaint and evidences u/s 200 and 202 CrPC but had neither any discussion of evidence was made, nor was it considered as to what overt act had allegedly been committed by accused. This contention of learned counsel for the applicants cannot be ruled out that leaned counsel have noted the contents of complaint and statements without considering its probability or prima facie case, and whether he had actually considered statements u/ss 200, 202 CrPC or the documents of the original. At stage of summoning, the Magistrate is not required to meticulously examine or evaluate the evidence. He is not required to record detailed reasons. A brief order which indicate the application of mind is all that is expected of him at the stage."

7. From the aforesaid judgments, it is crystal clear that at the stage of summoning, the Magistrate is not required to examine and evaluate the evidence and he is also not required to give detail reasons for coming to conclusion and recording its satisfaction with regard to prima facie case. However, order of summoning must indicate the application of mind, that is expected at this stage.

8. Thus in the considered opinion of this Court, before summoning an accused in a complaint case, it is imperative upon the Magistrate to at least refer to the accusation made in the complaint and thereafter record its satisfaction whether a prima facie case is made out against the accused persons and once the Magistrate is satisfied that the prima facie case is made out, the summoning can be done. Without referring to the accusations and satisfying itself that a prima facie case for summoning is made out, the summoning order is not sustainable.

9. In view thereof, the impugned order dated 20.04.2024 passed by the Presiding Officer, Village Court, Tehsil-Mehnagar, District Azamgarh is not sustainable, therefore, the same is hereby quashed and the matter is again remanded back to the trial court for passing the fresh order in accordance with law, keeping in mind the observations made in this order and law laid down by Apex Court.

10. With the aforesaid observatin, the instant application is hereby allowed. Order Date :- 22.7.2025 Ashish Pd. (Anish Kumar Gupta,J.) ASHISH PRASAD High Court of Judicature at Allahabad

1. Heard Sri Saurabh Kumar Pandey, learned counsel for the applicants and Sri Satyendra Tiwari, learned AGA for the State.

2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 20.04.2024 as well as the entire proceeding of Complaint Case No. 162 of 2024 (State vs. Sadaruddin and others), under Sections 323, 504 IPC, P.S. Tarwan, District Azamgarh, pending in the court of Village Court, Tehsil-Mehnagar, District Azamgarh.

3. Learned counsel for the applicants submits that initially in the instant case, an NCR was lodged by the opposite party no.2 on 10.09.2021 under Sections 323, 504 IPC. After seeking permission under Section 155(2) Cr.P.C., the investigation was conducted in the instant case and the charge sheet was filed against the applicant herein for the offence under Sections 323, 504 IPC. Thereafter the learned Magistrate vide order dated 26.11.2022 has taken cognizance in the said charge sheet and summoned the applicants herein. The said summoning order was challenged by the applicants by filing an Application under Section 482 No. 39765 of 2023. The Co-ordinate Bench of this Court took a view that when a charge sheet is filed only for non-cognizable offence under Sections 323, 504 IPC, the Magistrate was required to treat the said charge sheet a complaint case. In view thereof, the Co-ordinate Bench of this Court vide order dated 24.11.2023 quashed the cognizance / summoning order dated

26.11.2022 and the matter was remanded back to the trial court concerned to pass fresh order treating the charge sheet dated 08.07.2022 as a complaint and follow the procedure prescribed for hearing of the complaint case. After remand, vide impugned order dated 20.04.2024, the learned Magistrate has again passed the order treating the charge sheet as a complaint case and simultaneously summoned the applicants herein for the offence under Sections 323, 504 IPC.

4. Learned counsel for the applicants submits that even in the impugned order dated 20.04.2024 the Magistrate has not discussed the accusations made against the applicants nor has recorded its satisfaction whether from the accusations made, a prima facie case is made out against the applicants which is a minimum requirement before summoning of the accused in the complaint case. In support of his submissions, he has relied upon the judgment of Apex Court in Fakhruddin Ahmad vs. State of Uttaranchal and another, 2009 (64) ACC 774, wherein the Apex Court has held as under: "15. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."

5. Learned counsel for the applicants has also relied upon the judgment dated

22.12.2023 passed by Co-ordinate Bench of this Court in Application under Section 482 No. 46986 of 2023, in which it has been held as under: "8. From perusal of the impugned order it appears that before taking cognizance the learned Magistrate has neither taken into consideration the nature of accusations nor he has made any any effort to satisfy himself as from the materials collected during investigation and keeping in view the nature of the allegations made against the applicants any offence under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 of DP Act was disclosed or not."

6. He has also relied upon another judgment of this Court in Hari Ram Verma and 4 others vs. State of U.P. and another, 2017 (99) ALL CC 104, wherein the following observations have been made: "7. A perusal of this impugned summoning order indicates that learned Magistrate had noted in the impugned order the contents of complaint and evidences u/s 200 and 202 CrPC but had neither any discussion of evidence was made, nor was it considered as to what overt act had allegedly been committed by accused. This contention of learned counsel for the applicants cannot be ruled out that leaned counsel have noted the contents of complaint and statements without considering its probability or prima facie case, and whether he had actually considered statements u/ss 200, 202 CrPC or the documents of the original. At stage of summoning, the Magistrate is not required to meticulously examine or evaluate the evidence. He is not required to record detailed reasons. A brief order which indicate the application of mind is all that is expected of him at the stage."

7. From the aforesaid judgments, it is crystal clear that at the stage of summoning, the Magistrate is not required to examine and evaluate the evidence and he is also not required to give detail reasons for coming to conclusion and recording its satisfaction with regard to prima facie case. However, order of summoning must indicate the application of mind, that is expected at this stage.

8. Thus in the considered opinion of this Court, before summoning an accused in a complaint case, it is imperative upon the Magistrate to at least refer to the accusation made in the complaint and thereafter record its satisfaction whether a prima facie case is made out against the accused persons and once the Magistrate is satisfied that the prima facie case is made out, the summoning can be done. Without referring to the accusations and satisfying itself that a prima facie case for summoning is made out, the summoning order is not sustainable.

9. In view thereof, the impugned order dated 20.04.2024 passed by the Presiding Officer, Village Court, Tehsil-Mehnagar, District Azamgarh is not sustainable, therefore, the same is hereby quashed and the matter is again remanded back to the trial court for passing the fresh order in accordance with law, keeping in mind the observations made in this order and law laid down by Apex Court.

10. With the aforesaid observatin, the instant application is hereby allowed. Order Date :- 22.7.2025 Ashish Pd. (Anish Kumar Gupta,J.) ASHISH PRASAD High Court of Judicature at Allahabad