UMESH CHANDRA AND 2 OTHERSversusSTATE OF U.P. AND 2 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                  APPLICATION U/S 482 No. - 8974 of 2017

Umesh Chandra And 2 Others
                                                             .....Applicant(s)
                                   Versus

State Of U.P. And 2 Others
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)      : Shravan Kumar Pandey, Shyam Narain
                                Pandey
Counsel for Opposite Party(s) : A.S.G.I., G.A., Pranjal Mehrotra, Satish
                                Kumar Rai

Court No. - 84
                 HON'BLE JAI PRAKASH TIWARI, J.

Heard learned counsel for the applicants, learned counsel for opposite
party and learned AGA for the State.

The present 482 Cr.P.C. application has been filed to quash the
summoning order dated 02.01.2017 as well as Complaint Case
No.24/2017 arising out of Case Crime No.03 of 2016 under Section- 3 of
the Railway Property (Unlawful Possession) Act, 1966 Police Station-
Railway Post Rampur.

Brief facts of the case are that a tender for the purchase of 210 Eucalyptus
and other trees was published by the Railway Authority and the Applicant
No. 1 participated in the said tender process, and his bid was the highest
among all participants. Thereafter, the Divisional Engineer-III, Northern
Railway, Moradabad, accepted the bid of applicant No. 1 and on
22.07.2016 issued an acceptance letter in his favour. In pursuance of the
said letter, applicant No. 1 has deposited a sum of Rs.14,40,000/- along
with applicable taxes before the concerned authority. Subsequently, the
Divisional Engineer-III, Northern Railway, Moradabad, issued a delivery
letter in favour of applicant No. 1, specifying that the dates for delivery of
the trees were 10.11.2016, 12.11.2016, and 17.11.2016.

It is argued by learned counsel for the applicants that applicant No. 1 is
the auction purchaser of Eucalyptus and other trees. It is further argued
                                                        A482 No. 8974 of 2017
                               2


that on 09.11.2016, applicant Nos. 2 and 3 were collecting the trees on a
tractor; however, they were wrongly arrested by the police of Railway
Post, Rampur. It is further argued that the police party lodged an FIR,
registered as Case Crime No. 03 of 2016. The said FIR was challenged by
applicant No. 1 before this Hon’ble Court in Criminal Misc. Writ Petition
No. 24835 of 2016 (Umesh Chandra (Om) vs. State of U.P. and Others),
and vide order dated 07.12.2016, the said FIR was quashed, with the
observation that the offence under Section 5 of the Railway Property
(Unlawful Possession) Act, 1966 is a non cognizable hence no F.I.R. can
be registered and only a complaint as defined under Section 2 (d) Cr.P.C,
can be registered. It is also argued that opposite party No. 2 had filed a
complaint on 21.11.2016, against the applicants with regard to the
aforesaid incident. It is further argued that applicant No.1 moved an
application dated 21.11.2016 before the concerned authority seeking
information regarding the alleged wood seized by the R.P.F., Rampur, on
09.11.2016. A reply to the said application was provided by the
authorities on 29.11.2016, wherein it was clearly mentioned that the said
wood had been purchased by the contractor, i.e., applicant No. 1, through
auction. It is further argued that the applicants have not stolen any
property of the Railway Department, and that the Railways have wrongly
filed the complaint against them. It is lastly argued that the learned
Magistrate failed to consider the true facts of the case and has wrongly
summoned the applicants.

Learned AGA and learned counsel for opposite party have opposed the
aforesaid submission with the contention that the Divisional Engineer- III,
Northern Railway, Moradabad, has issued a delivery letter in favour of
the applicant no.1 mentioning the date of delivery of trees was
10.11.2016, 12.11.2016 and 17.11.2016 but the applicant nos. 2 & 4 had
arrested by the police on 09.11.2016 while collecting the woods.

In light of this legal position, I have gone through the impugned order. A
perusal of summoning order indicates that learned Magistrate had written
nothing, concerning the facts of the case. The accused person of
complaint were summoned for offences mentioned in that application. No
reason was mentioned in the impugned order, and the same clearly lacks
the reflection of application of judicial discretion or mind. Nothing is
                                                       A482 No. 8974 of 2017
                              3


there which may show that learned Magistrate, before passing the order
which is under challenged had considered facts of the case and evidence
or law. Therefore, it appears that, in fact, no judicial mind was applied
before passing of impugned order of summoning. Such order cannot be
accepted as a proper legal judicial order passed after following due
procedure of law.

In the judgment passed by the Hon'ble Apex Court in case of M/s. Pepsi
Food Ltd. & another vs. Special Judicial Magistrate & others, 1998
UPCrR 118, it is clearly mentioned that summoning of an accused is a
serious matter and while summoning an accused, the court has to see
prima facie evidence. Relevant paragraph of the said judgment 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
     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."

The judgement passed by 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:-
                                                         A482 No. 8974 of 2017
                               4


     "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."

Considering the aforesaid facts and circumstances of the present case and
upon the perusal of material on record, it appears from the letter dated
29.11.2016, issued by the Section Engineer (Work) Northern Raiway,
Bareilly that the seized woods belongs to the trees which were auctioned
and purchased by applicant no.1.

In the judgment passed by the Hon'ble Apex Court in case of Anita
Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520, it is
held that to secure the ends of justice, the High Court can look into
reliable material placed by the accused at the threshold stage, even
without a full trial. Relevant paragraph of the judgment is quoted as
under:-

     "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."

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 application succeeds and is allowed. The
                                                                                         A482 No. 8974 of 2017
                                                                 5


                                    impugned summoning order dated 02.01.2017 is hereby set-aside and the
                                    matter requires reconsideration.

                                    The present application is, accordingly, succeeds. The case is remanded
                                    back to the concerned learned Magistrate with direction to pass afresh
                                    reasoned and speaking order, in accordance with law .




                                                                                    (Jai Prakash Tiwari,J.)
                                    April 7, 2026
                                    S.K.




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