CHHOTE LAL AND 10 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 482 No. - 27722 of 2017

Chhote Lal And 10 Others
                                                           .....Applicant(s)
                                  Versus

State of U.P. and Another
                                                              .....Opposite
                                                                    Party(s)

Counsel for Applicant(s)              :    Sunil Kumar Singh
Counsel for Opposite Party(s)         :    Ashutosh Upadhyay, G.A.

Court No. - 84

                                                                       AFR

                 HON'BLE JAI PRAKASH TIWARI, J.

1. Heard Mr. Sanjay Misra, learned counsel for applicants and learned
A.G.A. for State.

2. This application under Section 482 Cr.P.C. has been filed challenging
summoning order dated 12.07.2017as well as Complaint Case No.1314 of
2016 (Ram Kishore Vs. Rakesh and others) under Sections- 323, 506 IPC
Police Station- Kudh Fatehgarh, and District- Moradabad pending before
learned Judicial Magistrate, Chandausi, District Moradabad.

3. Learned counsel for the applicants invited the attention of the Court to
the summoning order dated 12.07.2017. He submits that the order
impugned in 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 323,
506 IPC appears to have been committed. The said conclusion recorded
by the court concerned is not preceded by a discussion of the allegations
made in the complaint or the statement of the complainant and his
witnesses as recorded under sections 200 and 202 Cr.P.C. It is further
submitted that in absence of any finding recorded by the court concerned,
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 concerned for summoning the applicants under
sections 323, 506 IPC.

4. Learned AGA appearing on behalf of the State submits that there is no
illegality and perversity in the impugned order and no interference is
called for.
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5. I have heard learned counsel for the parties and perused the record.

6. Considering the facts of the present case, it transpires that in the
impugned order, there is nothing which may indicate that learned
Magistrate had considered the facts of the case before passing the
summoning order.

7. In the judgment passed by this Court in case of Hariram Verma and 4
Others Vs. State of U.P. and Another,reported in 2017 (99) ALL CC
104, it is held that 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. The said observations have been
made in paragraph no.7:-

     "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. "

8. The view taken by the Hon'ble Supreme Court in case of "M/s. Pepsi
Food Ltd. & another vs. Special Judicial Magistrate & others, 1998
UPCrR 118" regarding summoning of an accused in criminal case, is
quoted as under :-

     "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
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     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."

9. It is also necessary to discuss Sections 203 & 204 of Cr.P.C.:-

     "203. Dismissal of complaint.

     - If, after considering the statement on oath (if any) of the
     complainant and of the witnesses and the result of the inquiry
     or investigation (if any) under section 202, the Magistrate is of
     opinion that there is no sufficient ground for proceeding, he
     shall dismiss the complaint, and in every such case he shall
     briefly record his reasons for so doing."

     204. Issue of process.

     (1) If in the opinion of a Magistrate taking cognizance of an
     offence there is sufficient ground for proceeding, and the case
     appears to be -

     (a) a summons case, he shall issue his summons for the
     attendance of the accused, or

     (b) a warrant case, he may issue a warrant, or, if he thinks fit,
     a summons, for causing the accused to be brought or to appear
     at a certain time before such Magistrate or (if he has no
     jurisdiction himself) some other Magistrate having jurisdiction.

     (2) No summons or warrant shall be issued against the accused
     under sub-section (1) until a list of the prosecution witnesses
     has been filed.

     (3) In a proceeding instituted upon a complaint made in
     writing, every summons or warrant issued under sub-section
     (1) shall be accompanied by a copy of such complaint.

     (4) When by any law for the time being in force any process-
     fees or other fees are payable, no process shall be issued until
     the fees are paid and, if such fees are not paid within a
     reasonable time, the Magistrate may dismiss the complaint.

     (5) Nothing in this section shall be deemed to affect the
     provisions of section 87."
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10. 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 was 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 a well 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.

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 applicants 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.

13. Considering the uncontroverted averment of present petition u/s 482
Cr.P.C. 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 his complaint 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
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                                    summoning order as well as the complaint case are liable to be quashed.

                                    14. 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 in the eyes of law.

                                    15. Accordingly, the present criminal misc. application succeeds and is
                                    allowed. The impugned summoning order dated 12.07.2017 as well as
                                    Complaint Case No.1314 of 2016 (Ram Kishore Vs. Rakesh and others)
                                    under Sections- 323, 506 IPC Police Station- Kudh Fatehgarh, and
                                    District- Moradabad pending before learned Judicial Magistrate,
                                    Chandausi, District Moradabad, is set aside.

                                    16. The direction is issued to the learned Magistrate, concerned to pass
                                    afresh order in the light of the observations made herein above.


                                                                                       (Jai Prakash Tiwari,J.)
                                    April 16, 2026
                                    S.K.




Digitally signed by :-
SWEETY KANOJIA
High Court of Judicature at Allahabad