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Avtar Singh vs State Of U.P. And Another on 28 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 67

Case :- APPLICATION U/S 482 No. – 4783 of 2020

Applicant :- Avtar Singh

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Daya Ram Yadav

Counsel for Opposite Party :- G.A.

Hon’ble Rahul Chaturvedi,J.

Supplementary affidavit filed today by learned counsel for the applicant which is taken on record.

Heard Sri Daya Ram Yadav, learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The present application under Section 482 Cr.P.C. has been filed for quash/set aside the summoning order dated 30.08.2019 as well as entire proceedings of Complaint Case No. 5098 of 2019 (Hariom vs. Avtar Singh), under Section 406 IPC, Police Station- Loni Border, District-Ghaziabad.

Submission made by learned counsel for the applicant is that on earlier occasion opposite party no. 2 Hariom S/o Muralidhar has filed Complaint Case No. 1887 of 2016 (Hariom vs. Autar Singh), vide order dated 26.08.2019, in which applicant was summoned to face the trial under sections 406, 506 IPC.

It is submitted by learned counsel for the applicant that almost on the same facts and circumstances, opposite party filed a complaint Case No. 5098 of 2019 (Hariom vs. Ram Autar Singh), in which proceedings was initiated and on 30.08.2019, learned Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad, without applying judicial mind summoned the applicant to face the trial under section 406 IPC.

I have perused both the orders and background of the case. Facts of both the cases are almost akin in nature and it is not permissible in law to have two complaint cases for the same subject matter. It is further contended by learned counsel for the applicant that the order impugned suffers from manifest error passed by learned magistrate. Learned counsel for the applicant has relied upon the judgment of this Court in the case of Mahboob and others vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (All) (LB). Paragraph Nos. 10, 11 and 12 of the said judgement are relevant for the controversy in hand and are accordingly reproduced herein under:-

“(10) Hon’ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:

“14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word “inquiry ” has been defined under Section 2(g) of the Code, the same reads as follows:

“2. (g) ”inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,”

It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code.”

(11) In the present case, the learned Magistrate has not conducted any inquiry so as to satisfy himself that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and the result of such inquiry. There is ground for proceedings against the petitioners under Section 204 CrPC. There is nothing on record to show that the learned Magistrate has applied his mind to arrive at a prima facie conclusion. It must be recalled that summoning of accused to appear the criminal court is a serious matter affecting the dignity self-respect and image in the society. A process of criminal court cannot be made a weapon of harassment.

(12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 CrPC are perused and accused are summoned such order per se itself illegal which could not stand the test of law.”

Reliance is also placed upon the judgement of 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). Paragraph No. 10 of the aforesaid judgement is relevant for the controversy in hand. The same is 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.”

Reference may also be made to the judgement of this Court in the case of Hariram Verma and 4 Others Vs. State of U.P. and Anohter, reported in 2017 (99) ALL CC 104, wherein the following observations have been made in paragraphs 7 to 16:

“8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law.”

The perusal of the impugned summoning order it is evident that reason assigned is too sketchy and perfunctorily. It no where depicts the application of judicial mind or any sound resowing for recording his prima facie satisfaction for summoning the applicants.

Accordingly, I have no hesitation to quash the summoning order dated 30.08.2019 passed by Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad.

The summoning order dated 30.08.2019 passed by Additional Chief Judicial Magistrate, Court No. 1, Ghaziabad, is hereby quashed and the matter is remanded back to decide afresh and the learned magistrate is directed to pass suitable order in accordance with law within stipulated period of eight weeks.

With the aforesaid observation, the present application U/S 482 Cr.P.C. is disposed of.

Order Date :- 28.2.2020

v.k.updh.

 

 

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