# Ashok Kumar Nigam v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-14
- **Case number:** Application U/S 482 No. 35914 of 2008
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-nigam-v-state-of-u-p-anr-47513
- **Pages:** 7

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 204 -Summoning Order - The
Magistrate has not applied his judicial mind and
not recorded reasons before summoning the
accused to stand trial in complaint case being
oblivious of the fact that 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
must reflect that he has applied his mind to the
facts of the case and the law applicable thereto.
232 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Magistrate has to record his finding that the
statements recorded by him are sufficient to
proceed.

C. The court cannot pass cryptic order without
discussing
the
evidence
and
other
circumstances. (Paras 11,12)

Application disposed of. Matter remanded
to the Magistrate for reconsideration. (E12)

List of Cases cited:-

## Text

2 All. Ashok Kumar Nigam Vs. State of U.P. & Anr.
231
Magistrate is required to proceed with the
case as complaint case. The learned counsel
for the applicant places reliance upon the
explanation to Section 2(d) of the Code of
Criminal Procedure, which reads as under:-

"Explanation- A report made by
a police officer in a case which discloses,
after investigation, the commission of a
non-cognizable offence shall be deemed to
be a complaint; and the police office by
whom such report is made shall be
deemed to be the complaint."

7. He submits that on the basis of the
aforesaid explanation, which has been
interpreted by a Single Judge decision of
this Court in Dr. Prakash Kumar Sharma
Vs. State of U.P. and another, reported in
2007(59) ACC 998, holding that when the
charge sheet is only of non-cognizable
offences,
in
view
of
the
aforesaid
provisions, the charge sheet should be
treated as a complaint.

8. The argument is well founded and
resultantly the order taking cognizance is
set aside. The Magistrate may pass an order
taking cognizance, if he so chooses, by
proceeding in the matter as a complaint
case, under Chapter XV of the Cr.P.C. He
may also keep in mind the proviso (a) to
Section 200 Cr.P.C. which reads as
follows:-

"Provided
that,
when
the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses-

(a) if a public servant acting or
purporting to act in discharge of his
official duties or a Court has made the
complaint;

That is if the complainant who
gives the information in writing is a public
servant, who is acting in discharge of its
official duties, it may not be necessary to
examine
the
complainant
and
the
witnesses and the Magistrate may pass an
order under section 190(1)(a) of the Code
of Criminal Procedure taking cognizance
of the case instead of section 190(1)(b)
Cr.P.C."

9. In view of the above, the
Magistrate shall pass appropriate order,
within two weeks from the date of receipt
of a certified copy of this order.

10. With these observations, this
application stands allowed.
----------
(2022)02ILR A231
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2021

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Application U/S 482 No. 35914 of 2008

Ashok Kumar Nigam ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Manas Bhargava

Counsel for the Opposite Parties:
A.G.A.

A. Code of Criminal Procedure, 1973 -
Section 204 -Summoning Order - The
Magistrate has not applied his judicial mind and
not recorded reasons before summoning the
accused to stand trial in complaint case being
oblivious of the fact that 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
must reflect that he has applied his mind to the
facts of the case and the law applicable thereto.
232 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Magistrate has to record his finding that the
statements recorded by him are sufficient to
proceed.

C. The court cannot pass cryptic order without
discussing
the
evidence
and
other
circumstances. (Paras 11,12)

Application disposed of. Matter remanded
to the Magistrate for reconsideration. (E12)

List of Cases cited:-
1. Krishna Lal Chawla Vs St.of U.P.(Paras 13,
14)

2. M/s Pepsi Foods Ltd. Vs Special Judicial
Magistrate & ors. 1998 U.P. Cr.R. 118

3. S.M.S. Pharmaceuticals Limited Vs Neeta
Bhalla (2005)8 SCC 89 followed.

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the record.

2. By the present application under
Section 482 Cr.P.C. the applicant has
invoked the inherent jurisdiction of this
Court with a prayer to allow this
application
and
quash
the
entire
proceedings of complaint case No. 5120 of
2007 (Smt. Asha Nigam Vs. Ashok Kumar
Nigam and others) under Section 406, 323,
504, 506 I.P.C., P.S.- Kakadeo, Kanpur
pending in the court of M.M. - Xth, Kanpur
Nagar and also quash its consequential
summoning order dated 02.07.2008.

3. In this case, the complaint was filed
by the opposite party No.2 and the same
has been entertained after recording the
statement under Section 200 Cr.P.C. The
Court below has summoned the applicant
vide order dated 02.07.2008.

4. The scheme of Chapter-XV of
Cr.P.C. is comprehensive and in detail. The
object behind the provisions of Section 202
Cr.P.C. is to scrutinize carefully the
averments in the complaint with a view to
prevent a person named therein. A person
should
not
be
called
on
frivolous
complaint. Summoning of an accused in a
criminal case is a serious matter which is to
be examined carefully on the face value of
the allegations, the evidences in support
thereof Section 200 and 202 Cr.P.C. is
quoted below :

"200.
Examination
of
complaint.-
A
Magistrate
taking
cognizance of an offence on complaint
shall examine upon oath the complainant
and the witnesses present, if any, and the
substance of such examination shall be
reduced to writing and shall be signed by
the complainant and the witnesses, and also
by the Magistrate :

Provided
that,
when
the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses-

(a) if a public servant acting or
purporting to act in the discharge of his
official duties or a Court has made the
complaint; or

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under Section 192 :

Provided further that if the
Magistrate makes over the case to another
Magistrate
under
Section
192
after
examining
the
complainant
and
the
witnesses, the latter Magistrate need not reexamine them.

201. Procedure by Magistrate
not competent to take cognizance of the
case.- If the complaint is made to a
Magistrate who is not competent to take
cognizance of the offence, he shall,-
2 All. Ashok Kumar Nigam Vs. State of U.P. & Anr.
233

(a) if the complaint is in writing,
return it for presentation to the proper
Court with an endorsement to that effect;

(b) if the complaint is not in
writing, direct the complainant to the
proper Court.

202. Postponement of issue of
process. - (1) Any Magistrate, on receipt of
a complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under Section 192,
may, if he thinks fit, 1 [and shall, in a case
where the accused is residing at a place
beyond the area in which he exercises his
jurisdiction] postpone the issue of process
against the accused, and either inquire into
the case himself or direct an investigation
to be made by a police officer or by such
other person as he thinks fit, for the
purpose of deciding whether or not there is
sufficient ground for proceeding:

Provided that no such direction
for investigation shall be made-

(a) where it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Sessions; or

(b) where the complaint has not
been made by a Court, unless the
complainant and the witnesses present (if
any) have been examined on oath under
Section 200.

(2) In an inquiry under subsection (1), the Magistrate may, if he thinks
fit, take evidence of witnesses on oath:

Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session, he shall call upon the complainant
to produce all his witnesses and examine
them on oath.

(3) If an investigation under subsection (1) is made by a person not being a
police office, he shall have for that
investigation all the powers conferred by
this Code on an officer in charge of a police
station except the power to arrest without
warrant."

5. Section 203 Cr.P.C. is envisaged
for dismissal of the complaint. In case
Magistrate after considering the statements
on oath of the complaint and witnesses and
the result of the enquiry under Section 202,
if has formed the opinion for proceeding he
can dismiss the complaint by recording the
reasons briefly. Section 204 Cr.P.C. is the
provision where Magistrate has to form the
opinion for taking cognizance.

6. There is no specific mode or
manner of enquiry provided under Section
202 of the Code. Under Section 202 of the
Code, the witnesses are examined whereas
under Section 200 of the Code examination
of the complainant is necessary with option
of examining the witnesses present if any.
The Magistrate has to decide whether or
not
there
is
sufficient
ground
for
proceeding against the accused to proceed
in an enquiry envisaged under Section 202
of the Code.

7. Learned counsel for the applicant
submits that the learned Magistrate has
passed the order without application of mind
and he has not discussed the evidences on
record as to how he is satisfied to summon
the applicant. He further submits that after
recording the statement of opposite party
No.2, he has passed the order without
applying his judicial mind. He has placed
the reliance of order passed by Hon'ble Apex
Court in the case of Krishan Lal Chawla
Vs. State of U.P. and Another. The relevant
para nos.13 & 14 of the aforesaid judgment
is quoted here-in-under:-

"13.
The
aforesaid
powers
bestowed on the Magistrate have grave
234 INDIAN LAW REPORTS ALLAHABAD SERIES
repercussions on individual citizens' life
and liberty. Thus, these powers also confer
great responsibility on the shoulders of the
Magistrate - and must be exercised with
great caution, and after suitable judicial
application of mind. Observations in a
similar vein were made by this Court in
Pespi Foods Ltd. Vs. Special Judicial
Magistrate,(1998) 5 SCC 749:

"28. 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 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."
(emphasis supplied) This Court, thus,
clearly emphasised that the power to issue
a summoning order is a matter of grave
importance, and that the Magistrate must
only allow criminal law to take its course
after satisfying himself that there is a real
case to be made.

14.

Similarly,
the
power
conferred on the Magistrate under Section
202, CrPC to postpone the issue of process
pursuant to a private complaint also
provides an important avenue for filtering
out of frivolous complaints that must be
fully exercised. A four Judge Bench of this
Court has eloquently expounded on this in
Chandra Deo Singh v. Prokash Chandra
Bose & Anr., AIR 1963 SC 1430:

"7. ...No doubt, one of the objects
behind the provisions of Section 202 CrPC is
to enable the Magistrate to scrutinise
carefully the allegations made in the
complaint with a view to prevent a person
named therein as accused from being called
upon
to
face
an
obviously
frivolous
complaint. But there is also another object
behind this provision and it is to find out what
material there is to support the allegations
made in the complaint. It is the bounden duty
of the Magistrate while making an enquiry to
elicit all facts not merely with a view to
protect the interests of an absent accused
person, but also with a view to bring to book
a person or persons against whom grave
allegations are made. Whether the complaint
is frivolous or not has, at that stage,
necessarily to be determined on the basis of
the material placed before him by the
complainant..." (emphasis supplied) Thus, it
is clear that, on receipt of a private
complaint,
the
Magistrate
must
first,
scrutinise it to examine if the allegations
made in the private complaint, inter alia,
smack of an instance of frivolous litigation;
and second, examine and elicit the material
that supports the case of the complainant."

8. He has also placed the reliance of
the order passed by co-ordinate Bench of
this Court in Application U/S 482 No. -
11135 of 2020 (Hamid Ali Vs. State of U.P.
and Another).

9. Reference may also be made to the
judgement of this Court in the case of
2 All. Ashok Kumar Nigam Vs. State of U.P. & Anr.
235
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 11:

"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/s 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."

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
236 INDIAN LAW REPORTS ALLAHABAD SERIES
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 farreaching. 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."

10. Prima facie the evidence means
the evidences and statements in the
summoning case has to be seen against the
accused which are sufficient to constitute
the offence. The enquiry under Section 202
Cr.P.C., is limited only to test the truth or
falsehood of allegations made in the
complaint. It is thus to be seen whether the
material placed by the complainant prima
facie makes out case for summoning the
accused or not.

11. In the present case the Magistrate
has not conducted any enquiry so as to
satisfy himself that the allegation in the
complaint constitute and offence. He has to
further record his finding that statements
recorded by him are sufficient to proceed.
The ground for proceeding against the
applicant is provided under Section 204
Cr.P.C. The Magistrate has not applied his
mind and summons have been issued. It is
needless to say that summoning in criminal
case is a serious matter affecting the
dignity, self-respect and image in the
society. The criminal proceedings cannot be
allowed for harassment.

12. I have gone through the
judgments and perused the record. It is
abundantly clear that learned Magistrate
has not applied his judicial mind. He has
simply said that he is satisfied on the basis
of the statement recorded under Sections
200,
202
Cr.P.C.
and
therefore
he
2 All. Smt. Nisha & Ors. Vs. State of U.P. & Anr.
237
summoned the accused. The Court has to
record reasons while summoning the
accused in complaint case. The Court
cannot
passed
cryptic
order
without
discussing
the
evidences
and
other
circumstances. I am setting aside the order
dated 02.07.2008 and remanding the matter
to the concerned Court for passing afresh
order.

13. It is open for learned counsel for
the applicant to raise all the pleas available
to him.

14. Learned counsel for the applicant
will file certified copy of this order within a
period
of
twenty
days'
from
today
thereafter, the concerned Court will take
decision within a period of two months
after affording opportunity of hearing to the
parties concerned.

15. Needless to say that Court
concerned shall pass afresh order in
accordance with law.

16. The application is accordingly,
disposed of.
----------

(2022)02ILR A237
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2021

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Application U/S 482 No. 43568 of 2012

Smt. Nisha & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anurag Pathak, Sri Harshit Pathak
Counsel for the Opposite Parties:
A.G.A., Sri Jitendra Kumar Shishodia

A. Extension of Stay Orders - In Asian
Resurfacing of Road Agency Private Limited &
ors. v CBI (2018)16 SCC 299 it has been held
that in all pending cases where stay against
proceedings of a civil or criminal trial is
operating, the same will come to an end on
expiry of 6 months from the date of decision
unless in an exceptional case by speaking order
such stay is extended and in cases where stay
is granted in future the same will end on expiry
of 6 months from the date of such order unless
similar extension is granted by a speaking
order. Pursuant to the direction given by Apex
Court Hon'ble High Court, Allahabad has issued
directions to all the judicial officers subordinate
to the High Court vide CL No. 12/Admin 'G'-2
dated 26.04.2018 for compliance of the
directions given by Apex Court in the case of
Asian Resurfacing.

B. In Fazalullah Khan v M/s M. Akbar
Contractor(D) by LR's 2019(8) ADJ 615 it has
been held that interim orders granted by the
Apex Court are not vacated and continued
beyond a period of 6 months by reason of
pendency of appeal, it cannot be said that the
interim would automatically stand vacated.
Thus, the applicants cannot derive any benefit
of the said judgment.

Application dismissed. (E-12)

List of Cases cited:-
1. Asian Resurfacing of Road Agency Pvt. Ltd. &
ors. Vs CBI (2018)16 SCC 299

2.
Fazalullah
Khan
Vs
M/s
M.
Akbar
Contractor(D) by LR's 2019(8) ADJ 615

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- Heard learned counsel for the
parties and perused the record.

2- The instant application dated
27.11.2021 has been moved seeking