498A Quash Judgment 14.02.2020 in Complaint Case - Summoning orders cannot be passed without applying Judicial Mind - Magistrate cannotpass an order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 Cr.P.C. are perused
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498A Quash Judgment on 14.02.2020 – Allahabad High Court held that Summoning orders cannot be passed summarily or without applying judicial mind- Magistrate cannot pass an order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 Cr.P.C. are perused and summoning of person is illegal which could not stand the test of law. The accused cannot be summoned mechanically merely by writing that perused the statements under Sections 200 and 202 Cr. P. C. There must be discussion of evidence should be made and to mention as to what overt act had allegedly been committed by accused. Accordingly, the summoning order under Sections 498A, 504 and 506 I.P.C., pending in the Court of Judicial Magistrate is set aside.
This application under section 482 Cr. P. C. has been
filed challenging summoning order passed by Judicial Magistrate-II Kanpur
Dehat, in Case under Sections 498A, 504 and 506 I.P.C., pending in the Court of
Judicial Magistrate-II, Kanpur Dehat.
Learned counsel for the applicants invited the attention
of the Court to the summoning order. He submits that the order impugned in the
present application is wholly arbitrary and therefore liable to be set aside by
this Court. Elaborating his submission, learned counsel for the applicant
submits that the Court below has simply recorded a conclusion that on the basis
of the complaint, the statement of the complainant and his witnesses, prima
facie an offence under Sections 498A, 504 and 506 I.P.C. appears to have been
committed. The said conclusion recorded by the Court below is not preceded by a
discussion of the allegations made in the complaint and the statement of the
complainant and his witnesses as recorded under sections 200 and 202 Cr. P. C.
He, therefore, submits that in absence of any finding recorded by the Court
below, on the basis of the averments made in the complaint, the statement of
the complainant and that of the witnesses, no prima facie satisfaction was
recorded by the Court below for summoning the applicants under Sections 504 and
506 I.P.C. As such, no eqnuiry was committed by the Magistrate before passing
the impugned summoning order.
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In support of the aforesaid submission, reliance is placed upon the judgement 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:-
In support of the aforesaid submission, reliance is placed upon the judgement 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 along with the statements
recorded and the result of such inquiry. There is ground for proceedings against
the petitioners under Section 204 Cr.P.C. 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 Cr.P.C. 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:-
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"Learned Magistrate was required to at least 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."
"Learned Magistrate was required to at least 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 Another,
reported in 2017 (99) ALL CC 104, wherein the following observations have been
made in paragraphs 7 to 16:
"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 Cr.P.C. 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 Cr.P.C.
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.
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.
9. In ruling "M/s. Pepsi Food Ltd. & another
vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble
Supreme Court held :-
"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 the accused. Magistrate had 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."
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10. In "Paul George vs. State, 2002 Cri.L.J. 996" Hon'ble Supreme Court held :-
10. In "Paul George vs. State, 2002 Cri.L.J. 996" Hon'ble Supreme Court held :-
"We feel that whatever be the outcome of the
pleas raised by the appellant on merit, the order disposing of the matter must
indicate application of mind to the case and some reasons be assigned for
negating or accepting such pleas.- - - - - It is true that it may depend upon
the nature of the matter which is being dealt with by the Court and the nature of
the jurisdiction being exercised as to in what manner the reasons may be
recorded e.g. in an order of affirmance detailed reasons or discussion may not
be necessary but some brief indication by the application of mind may be
traceable to affirm an order would certainly be required. Mere ritual of
repeating the words or language used in the provisions, saying that no
illegality, impropriety or jurisdictional error is found in the judgment under
challenge without even a whisper of the merits of the matter or nature of pleas
raised does not meet the requirement of decision of a case judicially."
11. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla,
(2005) 8 SCC 89 the Apex Court had held :
"Section 203 of the Code empowers a Magistrate to
dismiss a complaint without even issuing a process. It uses the words
"after considering" and "the Magistrate is of opinion that there
is no sufficient ground for proceeding". These words suggest that the
Magistrate has to apply his mind to a complaint at the initial stage itself and
see whether a case is made out against the accused persons before issuing
process to them on the basis of the complaint. For applying his mind and
forming an opinion as to whether there is sufficient ground for proceeding, a
complaint must make out a prima facie case to proceed. This, in other words,
means that a complaint must contain material to enable the Magistrate to make
up his mind for issuing process. If this were not the requirement, consequences
could be far-reaching. If a Magistrate had to issue process in every case, the
burden of work before the Magistrate as well as the harassment caused to the
respondents to whom process is issued would be tremendous. Even Section 204 of
the Code starts with the words "if in the opinion of the Magistrate taking
cognizance of an offence there is sufficient ground for proceeding". The
words "sufficient ground for proceeding" again suggest that ground
should be made out in the complaint for proceeding against the respondent. It
is settled law that at the time of issuing of the process the Magistrate is
required to see only the allegations in the complaint and where allegations in
the complaint or the charge-sheet do not constitute an offence against a
person, the complaint is liable to be dismissed."
12. It is settled principle that while summoning an
accused, the court has to see prima facie evidence. The ''prima facie evidence'
means the evidence sufficient for summoning the accused and not the evidence
sufficient to warrant conviction. The enquiry u/s 202 CrPC is limited only to
ascertain of truth or falsehood of allegations made in the complaint and
whether on the material placed by the complainant a prima facie case was made
out for summoning the accused or not.
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13. As held by the Courts as above, the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind.
13. As held by the Courts as above, the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind.
14. In light of this legal position I have gone through
the impugned order. A perusal of this order indicates that neither any
discussion of evidence was made by learned, nor was it considered as to which
accused had allegedly committed what overt act. The five accused persons of
complaint were summoned for offences mentioned in it. 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 the facts and circumstances of the case and the
evidence or the 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. Therefore it is liable to be quashed.
15. In Anita Malhotra v. Apparel Export Promotion
Council, (2012) 1 SCC 520 the Apex Court had held as under:
"20. As rightly stated so, though it is not
proper for the High Court to consider the defence of the accused or conduct a
roving enquiry in respect of merits of the accusation, but if on the face of
the document which is beyond suspicion or doubt, placed by the accused and if
it is considered that the accusation against her cannot stand, in such a
matter, in order to prevent injustice or abuse of process, it is incumbent on
the High Court to look into those document/documents which have a bearing on
the matter even at the initial stage and grant relief to the person concerned
by exercising jurisdiction u/s 482 of the Code."
16. Considering the uncontroverted averment of present
petition u/s 482 CrPC as well as affidavit supporting it, the incorrect and
unbelievable complaint case, and false implication of five petitioners and the
general allegations levelled by informant in her FIR without allegations of any
specific act, the incorrectness of cause of action for the complaint and
considering the vagueness of information mentioned in complaint, and in light
of verdict mentioned in aforesaid rulings of Hon'ble Apex Court, this appears
to be a case in which applicants should succeed and the impugned summoning
order as well as the complaint case are liable to be quashed.
In the light of the judgements referred to above, it
is explicitly clear that the impugned summoning order passed by Court below is
cryptic and does not stand the test laid down by this Court.
Accordingly, the present criminal misc. application
succeeds and is allowed. The summoning order passed by Judicial Magistrate-II
Kanpur Dehat, in Case under Sections 498A, 504 and 506 I.P.C., pending in the
Court of Judicial Magistrate-II, Kanpur Dehat, is set aside. The Court below
shall pass a fresh order in the light of the observations made herein above.
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Case running m bhi quash k liye h c Ja skte h kya
ReplyDeleteYes we can go if strong grounds for quash are available but normally only after registeration of FIR and before the framing of charges
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