HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 452 of 2020

Applicant :- Durgesh Kumar Saroj And 3 Others

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

Counsel for Applicant :- Shyam Narayan Verma

Counsel for Opposite Party :- G.A.

Hon’ble Irshad Ali,J.

1. Sri Abhishek Kumar Saroj, Advocate has filed Vakalatnama on behalf of the opposite party No.2 today in Court, the same is taken on record.

2. Heard Sri Pranvesh, learned Advocate holding brief of Sri S.N. Verma, learned counsel for the applicants, learned A.G.A. for opposite party No.1 and Sri Abhishek Kumar Saroj, learned counsel for opposite party No.2.

3. By means of the present application under Section 482 Cr.P.C., the applicant has prayed to quash the entire proceeding of Case No.886 of 2019 (State Vs. Durgesh Kumar Saroj) arising out of Case Crime No.150 of 2019 under Sections 354, 452, 323, 504 and 506 IPC at Police Station Machhlishahar, District Jaunpur pending in the court of Additional Civil Judge-II, Senior Division, Jaunpur as well as charge sheet dated 25.6.2019 submitted by the Investigating Officer.

4. Submission of learned counsel for the applicants is that the order of summoning reflects that the Magistrate has not applied his mind while passing the order. He submits that allegation in the First Information Report in regard to the to allegation under Section 354 IPC is against the applicant No.1, which corroborates with the statement recorded under Sections 161 and 164 Cr.P.C. He next submitted that Section 170 IPC does not relate in the present facts and circumstances of the case, thus, mention of that procedure in the present case clearly demonstrates that the Magistrate has not passed this order, in fact, some Clerk of the office has incorporated the provision and has been signed by the concerned Magistrate without application of mind. In support of his submission, learned counsel for the applicants has relied upon the following cases of the Hon’ble Supreme Court, which are as under :-

(i) Pooja Ravinder Devidasani Vs. State of Maharashtra and another; (2014) 16 SCC 1. Relevant is paragraph 22 which is being quoted below :-

“22. As held by this Court in Pepsi Foods Ltd. Anr. Vs. Special Judicial Magistrate Ors. (1998) 5 SCC 343, summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. 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 scrutinise 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.”

(ii) Fakhruddin Ahmad Vs. State of Uttaranchal and another; (2008) 17 SCC 157. Relevant are paragraphs 17, 18 and 19 which are being quoted below :-

“17.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.

18.Adverting to the facts on hand, as noted above, on presentation of the complaint by the complainant before the Magistrate on 15th September, 2005, on its perusal, instead of taking cognizance of the offence alleged, with a view to issue a process, the learned Magistrate considered it appropriate to send the complaint to the police for investigation under Section 156 (3) of the Code. Therefore, it cannot be said that at the initial stage on 15th September, 2005 the Magistrate had taken cognizance. Thereafter, pursuant to the directions by the Magistrate, the police registered the F.I.R. on 22nd September, 2005 and submitted its report which reads as under:

“Sir, Applicant Virendra Singh Chauhan, the abovementioned, has issued two blank cheques bearing no. and A/c no. as mentioned back, has been issued to Salim Ali against the guarantee for Rs.30,000/- taken from him. The report of it being misplaced from the hands of Salim Ali has been given to Police Station and same the action has been taken in Bank by Accused Fakhruddin in relation to the cheques. There exist no evidence regarding this with the Applicant. The lodging of report regarding misuse of cheques by Fakhruddin or any application thereto has not been confirmed. Send for kind perusal.

S.I. Dinesh Rana P.S. Haldwani”

It appears from the afore-extracted report that the stand of the complainant that a report regarding misplacing of the cheque and its user by the appellant had been lodged with the police was found to be incorrect. Nonetheless, after further investigations the police finally filed the chargesheet against the appellant on 16th December, 2005. Relevant portion of the chargesheet reads thus:

“Applicant Virendra Singh Chauhan on 22.09.05 vide Order of Ld. Court u/s 156 (3) Cr.P.C. filed a report that accused block no.3 after getting the cheque somehow, issued by Applicant, which got misplaced by witness Salim Ali, by his own accord filled hefty amount of Rs.8,65,000/- (Rupees Eight Lacs Sixty Five Thousands only) and produced it before the Bank for the withdrawal of the same but did not get the money as cash was not there. This case, after recording statement, case was investigated and till now after investigation, against the accused, u/s 420, 467, 468, 471 IPC is proved. There is stay arrested against accused from High Court of Nainital. Hence, it is prayed that accused be summoned and after taking evidence he be punished.”

19.Although the order passed by the Magistrate taking cognizance is not before us but it is stated that the Magistrate took cognizance of the aforenoted offences on the basis of the afore-extracted chargesheet and the statements of various persons recorded by the police. Learned counsel appearing for the State placed on record copies of the statements. It is pertinent to note that in the impugned order, extracted above, the High Court has itself observed that no material had been placed before it, which, in fact, led the learned Judge to assume that the prosecution has produced evidence in support of the complaint. It is, thus, manifest that in the absence of material stated to have been filed alongwith the chargesheet, the High Court did not get an opportunity to apply its mind as to whether on the basis of the material before the Magistrate, a prima facie case had been made out against the accused-appellant. Under these circumstances, we feel that it may not be proper to express any opinion on the merits of the case against the appellant based on the documents placed before us by learned counsel for the State, save and except noting that the cheque in question, i.e. the `valuable security’ does not form part of this set of documents.”

5. On the other hand, learned A.G.A. in regard to the first judgment submits that the ratio of the judgment is distinguishable on the ground that in the case, the subject matter of consideration was arising out of a complaint case lodged under Section 200 Cr.P.C., wherein Magistrate on recording statement of witnesses issued order of summoning to the accused persons, therefore, the ratio of the case does not apply to the present case. In regard to the second judgment relied upon, learned A.G.A. submits that the Magistrate has to consider that whether the offence has been made out or not. He does not consider while issuing the order of summoning that whether offender is involved in the subject matter or not. Learned A.G.A. does not dispute that provision of Section 170 IPC does not attract to the present facts and circumstances of the case.

6. Learned counsel for the opposite party No.2 also adopts the same argument, as has been advanced by learned A.G.A.

7. I have considered the submission of learned counsel for the parties and perused the material on record as well as the judgments relied upon by learned counsel for the applicants.

8. On perusal of the allegation of the First Information Report, it is evident on the face of it that the allegation of Section 354 IPC is against the applicant No.1, which corroborates on perusal of the statement recorded under Sections 161 and 164 Cr.P.C. The Investigating Officer on the basis of allegation and statement recorded, has submitted charge sheet before the Magistrate.

9. On perusal of the impugned order, it is reflected that the mention of provision of Section 170 IPC in the present case does not attract, therefore, prima facie it appears that the Magistrate has not applied his own mind.

10. In regard to the ratio of the judgment referred hereinabove, on perusal, it is evident that while issuing summon on receipt of charge sheet from the Investigating Officer, the Magistrate should apply his mind. Prima facie the ratio of the second judgment in the case of Fakhruddin Ahmad (Supra) applies to the present facts and circumstances of the case.

11. In view of the above, the applicants have made out a prima facie case for the grant of interim order.

12. All the opposite parties are granted three weeks’ time to file counter affidavit. Rejoinder affidavit, if any, maybe filed within one week thereafter.

13. List immediately thereafter before appropriate Bench.

14. Till the next date of listing, further proceeding in Case No.886 of 2019 (State Vs. Durgesh Kumar Saroj) arising out of Case Crime No.150 of 2019 under Sections 354, 452, 323, 504 and 506 IPC at Police Station Machhalishahar, District Jaunpur shall remain stayed.

Order Date :- 9.1.2020

Gautam