# Dr. Vishnu Chandra Tripathi & Ors v. State of U.P. & Anr

- **Citation:** (2019) 2 ILRA 2260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-25
- **Case number:** Criminal Appeal No. 1005 of 2019
- **Bench:** Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vishnu-chandra-tripathi-ors-v-state-of-u-p-anr-44718
- **Pages:** 10

## Headnote

A. Sections 323, 504, 506 IPC & 3(1) DA,
Dha, SC/ST (Prevention of Atrocities),
Act. - Appeal against conviction. Sections
200, 202, 203 and 204 I.P.C. discussed.

The proceedings under Section 202 the
accused has got absolutely no locus standi and
is not entitled to be heard on the question
whether the process should be issued against
him or not."

A wide discretion has been given as to grant
or refusal of process and it must be judicially
exercised. A person ought not to be dragged
into Court merely because a complaint has
been filed. If a prima facie case has been
made out, the Magistrate ought to issue
process and it cannot be refused merely
because he thinks that it is unlikely to result in
a conviction.

The Magistrate is not to act as a post office in
taking cognizance of each and every complaint
filed before him and issue process as a matter of
course. There must be sufficient indication in the
order passed by the Special Judge that he is
satisfied that the allegations in the complaint
constitute an offence and when considered along
with the statements recorded and inquiry report of
investigation Under Section 202 of Code of
Criminal Procedure, if any, the accused is
answerable before the criminal court and there is
sufficient ground for proceeding against the
accused Under Section 204 of Code of Criminal
Procedure, by issuing process for appearance.
Application of mind is best demonstrated by
disclosure of mind on the satisfaction.

The summoning order passed by the special
Court against law laid down therefore the
same could not be allowed to stand.

Appeal allowed (E-2)
Case Law Referred: -

## Text

2260 INDIAN LAW REPORTS ALLAHABAD SERIES
arm having a little longer blade with both
sides sharp, could also be not ruled out. P.W.-
1/Rafique has also stated that appellant Siya
Ram started stabbing deceased below his
chest.
P.W.-1/Rafique
in
his
crossexamination at Page No. 3 has stated that
appellant, Siya Ram gave knife blows to the
deceased causing him fall down. P.W.-
2/Mohd. Shamim in his evidence has also
stated that accused Siya Ram gave 02 blows.

29. Therefore, in peculiar facts and
circumstance of the case as well as from
the established facts, it is apparent that the
act of appellant Siya Ram is covered
under Section 304 Part-I of the I.P.C.
instead of Section 300 punishable under
Section 302 of the I.P.C. and, therefore,
appellant Siya Ram is liable to be
convicted under Section 304 Part-I of
I.P.C. and not under Section 302 I.P.C.

30. In view of our aforesaid discussion,
the appeal filed by the appellants namely
Karan Singh, Harish Chandra, Ram
Shanker and Kalloo is allowed. Appellants
are acquitted of the charges levelled against
them. From amongst the above appellants,
appellant Kallo has been released on
remission of sentence by State Government
and other appellants are reported to be on bail,
therefore, they need not to surrender in this
case. Their bail bonds are cancelled and
sureties are discharged. However, each of the
appellant
i.e.
Karan
Singh,
Harish
Chandra, Ram Shanker and Kalloo shall
file a personal bond and two sureties each in
the like amount to the satisfaction of the court
concerned in compliance of the Provision as
contained under Section 437-A of the Code of
Criminal Procedure.

31. So far as appeal pertaining to
appellant, Siya Ram is concerned, the
same is partly allowed. The conviction of
appellant Siya Ram is maintained, but in the
facts and circumstances of the case as well as
on the basis of established and proved facts,
he is convicted under Section 304 Part-I of the
I.P.C. instead of Section 302 I.P.C. and his
sentence of imprisonment for life, as awarded
by the Trial Court is modified to the sentence
of 09 years' rigorous imprisonment along with
fine of Rs. 20,000/- and in default of payment
of
fine
to
undergo
further
simple
imprisonment of 03 months. Out of the
amount of fine, Rs. 15,000/- shall be paid to
the wife of the deceased (If she is alive), and
in case she is dead, this amount shall be paid
to his other legal heirs in equal proportion.

Shri Shahid Akhtar, Advocate was
appointed as Amicus Curiae in Criminal
Appeal No. 1839 of 2004 for appellant/Kalloo
will get Rs. 10,000/- as honorarium.

Appellant Siyaram is reported
to be on bail. He will surrender before
the Trial Court within 15 days from
today to serve the sentence as modified
by this Court.

A copy of this judgment be sent
to the Trial Court immediately for
compliance and information.
----------

(2019)10ILR A 2260

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2019

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 1005 of 2019

Dr. Vishnu Chandra Tripathi & Ors.
 ...Appellants
2 All. Dr. Vishnu Chandra Tripathi & Ors. Vs. State of U.P. & Anr.
2261
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Sri Manoj Kumar Mishra, Sri Vinay Kumar

Counsel for Respondents:
Govt. Advocate, Sri Manoj Kumar Singh

A. Sections 323, 504, 506 IPC & 3(1) DA,
Dha, SC/ST (Prevention of Atrocities),
Act. - Appeal against conviction. Sections
200, 202, 203 and 204 I.P.C. discussed.

The proceedings under Section 202 the
accused has got absolutely no locus standi and
is not entitled to be heard on the question
whether the process should be issued against
him or not."

A wide discretion has been given as to grant
or refusal of process and it must be judicially
exercised. A person ought not to be dragged
into Court merely because a complaint has
been filed. If a prima facie case has been
made out, the Magistrate ought to issue
process and it cannot be refused merely
because he thinks that it is unlikely to result in
a conviction.

The Magistrate is not to act as a post office in
taking cognizance of each and every complaint
filed before him and issue process as a matter of
course. There must be sufficient indication in the
order passed by the Special Judge that he is
satisfied that the allegations in the complaint
constitute an offence and when considered along
with the statements recorded and inquiry report of
investigation Under Section 202 of Code of
Criminal Procedure, if any, the accused is
answerable before the criminal court and there is
sufficient ground for proceeding against the
accused Under Section 204 of Code of Criminal
Procedure, by issuing process for appearance.
Application of mind is best demonstrated by
disclosure of mind on the satisfaction.

The summoning order passed by the special
Court against law laid down therefore the
same could not be allowed to stand.

Appeal allowed (E-2)
Case Law Referred: -

1. C.H.C.L. Employees Stock Option Trust Vs
India Infalin Ltd. 2013(4) SCC 505

2. AIR 1998 S. C. 128, M/s. Pepsi Foods Ltd. &
anr. Vs S.J.M. & ors.

3. AIR 2012 SUPREME COURT 1747, Bhushan
Kumar & anr Vs St. (NCT of Delhi) & anr.

4. AIR 1976 SUPREME COURT 1947, Smt.

5. Nagawwa v/s Veeranna Shivalingappa
Konjalgi & ors.

6. AIR 2015 SUPREME COURT 923, Sunil
Bharti Mittal Vs Central Bureau of Investigation
(Three Judges Bench)

7. AIR 2012 SUPREME COURT 1921, Nupur
Talwar Vs Central Bureau of Investigation &
anr.

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard learned counsel for the
appellants and learned AGA for the State
as well as learned counsel for respondent
no.2 and perused the record.

2. This Criminal Appeal under
Section 14-A(1) SC/ST (P.A.) Act, 1989
has been filed against the order dated
29.3.2019 passed by Special Judge SC/ST
Act (Prevention of Atrocities), Act,
Bahraich in Criminal Case No. 46/2019
Bindra Pasi Vs. Dr. Vishnu Chandra
Tripathi and others, by which the
appellants have been summoned under
Sections 323, 504, 506 IPC & 3(1) DA,
Dha, SC/ST (Prevention of Atrocities),
Act, relating to Police Station Kotwali
Nagar, District Bahraich.

3. Brief facts giving rise to this
appeal are, that a complaint case was filed
2262 INDIAN LAW REPORTS ALLAHABAD SERIES
before
Special
Judge
SC/ST
Act,
Bahraich by complainant, namely, Bindra
Pasi against the appellants alleging that he
belongs to a scheduled caste community
and for the last many years, he is working
as a house hold servant at the residence of
Dr. Shiv Prasad Ojha. On 10.2.2019 at
about 1,00 P.M. the appellants came to
the residence of his Master Dr. Shiv
Prasad Ojha. Two out of three persons
were holding a briefcase in their hands
and on being asked they narrated their
names as Dr. Vishnu Chandra Tripathi,
Principal Raj College, Jaunpur and
Sudhakar Maurya- Accountant of the
same College while the third person,
namely, Sanjay Kumar Singh introduced
himself as clerk in the same College.

4. It is further stated in the complaint
that he told these persons that his master is
not available at home, on this Dr. Vishnu
Chandra Tripathi and Sudhakar Maurya
asked his name and on being told they at
once became angry and addressed him with
his caste. On this he went inside the house
and on the instruction of his master informed
them that his master will not meet them. On
this all these three persons physically
assaulted him and also threatened him of his
life. They also attempted to drag him towards
their vehicle which was standing nearby.He
made a noise on which other servants,
namely, Shankar Dayal and Kuldeep etc.
arrived and helped the complainant. He
informed the Police Station Kotwali Nagar
about the incident but no action was taken by
the police, on which he made a complaint to
the Superintendent of Police, Bahraich. He
could not get his injuries examined due to his
poorness.

5. The trial court after recording the
statement of the complainant and his two
witnesses, namely, Kuldeep and P.W.2 ?
Vikas by impugned order summoned the
appellants to face trial under Sections
323, 504, 506 and Section 3(1) Da, Dha
of SC/ST Act and the same is the subject
matter of this appeal, being challenged by
the appellants.

6. Learned counsel for the appellants
submits that the appellants are Principal,
Accountant and Assistant Teacher of
R.K.D. P.G. College, Jaunpur. Earler one
Dr. Shiv Prasad Ojha (employer of the
complainant) was the Principal of this
College, who is a permanent resident of
Brahmnipura, whohas retired as Principal
of this College.

7. It is next submitted that the
appellants no. 1, 2 and 3 are permanent
resident of villages situated in Jaunpur
district while Dr. Shiv Prasad Ojha, where
complainant/ opposite party no.2 is
working as domestic, is a resident of
Bahraich.

8. It is next submitted that one Dr.
Asha Ram made a complaint against Dr.
Shiv Prasad Ojha on 4.4.2012 pertaining
to some financial embezzlement allegedly
made by him and a committee to inquire
the
matter
was
constituted,
which
submitted a reprot against Dr. Shiv Prasad
Ojha on 21.6.2018, which was forwarded
to Regional Higher Educational Officer/
Administrator, Varanasi Region. A First
Information Report was also lodged by
appellant no.1 agaisnt Dr. Shiv Prasad
Ojha and one other co-accused (Annexure
no.2) pertaining to the fact that Dr. Shiv
Prasad Ojha is pressurizing the appellant
no.1 to illegally provide him a 'Nonencumbrance Certificate' and when he
refused to issue the same, on 6.2.2019 two
persons came to his house and while
showing pistol threatened him to issue the
2 All. Dr. Vishnu Chandra Tripathi & Ors. Vs. State of U.P. & Anr.
2263
'Non-encumbrance Certificate' to Dr. Shiv
Prasad Ojha otherwise he will be shot
dead. It is alleged that when Dr. Shiv
Prasad Ojha came to know about the
registration of the FIR on 6.2.2019, he
through his servant filed instant complaint
on 18.2.2019 with the false and fabricated
allegations. It is further submitted that the
instant complaint is nothing but the
counter blast of the First Information
Report lodged by the appellant no.1
against Dr. Shiv Prasad Ojha and the
complaint has only been lodged because
the appellant no.1 refused to issue an
illegal 'Non-encumbrance Certificate' to
Dr. Shiv Prasad Ojha, which he was
requiring to use as his defence in a
departmental proceeding instituted against
him.

9. It is further submitted that the
court below has materially erred in
summoning the appellants as it was
apparent on the face of the record that the
complaint has been made with an ulterior
motive. It was the duty of the trial court to
see the alleged facts in the back ground of
the probability. The facts alleged in the
complaint are patently absurd and could
not be believed by a normal prudent
person
and
therefore
the
instant
summoning order is nothing but abuse of
process of law and therefore is not
sustainable and is liable to be set aside.

10. Learned AGA, however, submits
that at the stage of summoning deep
evaluation of the evidence is not required
and only a prima facie case is to be seen.
Keeping this principle in view no
illegality has been committed by the court
below.

11. Learned counsel for the
respondent
no.2
submits
that
the
appellants despite being informed that
Shri Shiv Prasad Ojha does not want to
meet them assaulted the complainant as
also addressed him with castiest remarks
and also dragged him towards their
vehicle which was standing nearby.

12. It is further submitted that
statement of the complainant has been
amply corroborated by the statement of
P.W.1 and P.W.2 and therefore there was
sufficient material / evidence available
with the subordinate court to pass order of
summoning. Therefore, no illegality has
been done committed by the trial court
and no interference is required in the
impugned order, therefore the appeal
preferred by the appellants is liable to be
dismissed.

13. At this juncture it is fruitful to
have a look so far as the law pertaining to
summoning of the accused persons in a
complaint case is concerned and the
perusal of the case law mentioned herein
below
would
clearly
show
that
cognizance of an offence on complaint is
taken for the purpose of issuing process to
the accused. Since it is a process of taking
judicial notice of certain facts which
constitute an offence, there has to be
application of mind as to whether the
allegations
in
the
complaint,
when
considered along with the statements
recorded
or
the
inquiry
conducted
thereon, would constitute violation of law
so as to call a person to appear before the
criminal court. It is not a mechanical
process or matter of course.

14. In C.H.C.L.Employees Stock
Option Trust VS. India Infalin Ltd.
2013(4) SCC 505 It was emphasized by
the
Honble
Supreme
Court
that
summoning of accused in a criminal case
2264 INDIAN LAW REPORTS ALLAHABAD SERIES
is a serious matter. Hence, 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. The
Magistrate has to record his satisfaction
with regard to the existence of a prima
facie case on the basis of specific
allegations
made
in
the
complaint
supported by satisfactory evidence and
other material on record.

15. In AIR 1998 S. C . 128 , M/s. Pepsi
Foods Ltd. and another v. Special Judicial
Magistrate and others held 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
of
the
accused.
Magistrate has 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 primafacie committed by all or any of
the accused."

16. In AIR 2012 SUPREME
COURT 1747,Bhushan Kumar and
Anr v. State (NCT of Delhi) and Anr"
the Apex Court has held that "10. Section
204 of the Code does not mandate the
Magistrate to explicitly state the reasons
for issuance of summons. It clearly states
that if in the opinion of a Magistrate
taking cognizance of an offence, there is
sufficient ground for proceeding, then the
summons may be issued. This section
mandates the Magistrate to form an
opinion as to whether there exists a
sufficient ground for summons to be
issued but it is nowhere mentioned in the
section that the explicit narration of the
same is mandatory, meaning thereby that
it is not a pre-requisite for deciding the
validity of the summons issued."

17. In AIR 1976 SUPREME
COURT 1947, Smt. Nagawwa v/s
Veeranna Shivalingappa Konjalgi &
others, It is held by The Apex Court that
"It is well settled by a long catena of
decisions of this Court that at the stage of
issuing process the Magistrate is mainly
concerned with the allegations made in
the complaint or the evidence led in
support of the same and he is only to be
prima facie satisfied whether there are
sufficient grounds for proceedings against
the accused. It is not the province of the
Magistrate to enter into a detailed
discussion of the merit or de-merits of the
case nor can the High Court go into this
matter in its revisional jurisdiction which
is a very limited one."

"4.It would thus be clear from
the two decisions of this Court that the
scope of the inquiry under Section 202 of
the Code of Criminal Procedure is
extremely limited - limited only to the
ascertainment of the truth or falsehood of
2 All. Dr. Vishnu Chandra Tripathi & Ors. Vs. State of U.P. & Anr.
2265
the allegations made in the complaint - (i) on
the materials placed by the complainant before
the Court; (ii) for the limited purpose of finding
out whether a prima facie case for issue of
process has been made out; and (iii) for
deciding the question purely from the point of
view of the complainant without at all
adverting to any defence that the accused may
have. In fact it is well settled that in
proceedings under Section 202 the accused has
got absolutely no locus standi and is not
entitled to be heard on the question whether the
process should be issued against him or not."

"It is true that in coming to a
decision as to whether a process should be
issued the Magistrate can take into
consideration
inherent
improbabilities
appearing on the face of the complaint or in
the evidence led by the complainant in
support of the allegations but there appears
to be a very thin line of demarcation
between a probability of conviction of the
accused and establishment of a primafacie
case against him. The Magistrate has been
given an undoubted discretion in the matter
and the discretion has to be judicially
exercised by him. Once the Magistrate has
exercised his discretion it is not for the High
Court, or even the Supreme Court, to
substitute its own discretion for that of the
Magistrate or to examine the case on merits
with a view to find out whether or not the
allegations in the complaint, if proved,
would ultimately end in conviction of the
accused. These considerations are totally
foreign to the scope and ambit of an inquiry
under Section 202 which culminates into an
order under Section 204. Thus in the
following cases an order of the Magistrate
issuing process against the accused can be
quashed or set aside:

(1) Where the allegations made
in the complaint or the statement of the
witness recorded in support of the same
taken at their face value make out
absolutely no case against the accused or
the complaint does not disclose the
essential ingredients of an offence which
is alleged against the accused;

(2) where the allegations made
in the complaint are patently absurd and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is sufficient ground for proceeding
against the accused;

(3)
where
the
discretion
exercised by the Magistrate in issuing
process is capricious and arbitrary
having been based either on no evidence
or on materials which are wholly
irrelevant or inadmissible and

(4) where the complaint suffers
from fundamental legal defects, such as,
want of sanction, or absence of a
complaint by legally competent authority
and the like."

18. In AIR 2015 SUPREME
COURT 923,Sunil Bharti Mittal v.
Central Bureau of Investigation (Three
Judges Bench) Hon,ble Apex Court held
as under:

"45. On the other hand, Section
204 of the Code deals with the issue of
process, if in the opinion of the
Magistrate taking cognizance of an
offence, there is sufficient ground for
proceeding. This Section relates to
commencement of a criminal proceeding.
If the Magistrate taking cognizance of a
case (it may be the Magistrate receiving
the complaint or to whom it has been
transferred under Section 192), upon a
consideration of the materials before him
2266 INDIAN LAW REPORTS ALLAHABAD SERIES
(i.e., the complaint, examination of the
complainant and his witnesses if present,
or report of inquiry, if any), thinks that
there is a prima facie case for proceeding
in respect of an offence, he shall issue
process against the accused.

46. A wide discretion has been
given as to grant or refusal of process and
it must be judicially exercised. A person
ought not to be dragged into Court merely
because a complaint has been filed. If a
prima facie case has been made out, the
Magistrate ought to issue process and it
cannot be refused merely because he
thinks that it is unlikely to result in a
conviction.

47.
However,
the
words
"sufficient
grounds
for
proceeding"
appearing in the Section are of immense
importance. It is these words which amply
suggest that an opinion is to be formed
only after due application of mind that
there is sufficient basis for proceeding
against the said accused and formation of
such an opinion is to be stated in the
order itself. The order is liable to be set
aside if no reason is given therein while
coming to the conclusion that there is
prima facie case against accused, though
the order need not contain detailed
reasons. A fortiori, the order would be
bad-in-law if the reason given turns out to
be ex facie incorrect."

19. In AIR 2012 SUPREME
COURT 1921,Nupur Talwar v. Central
Bureau of Investigation and Anr it is
propounded by the Hon'ble Supreme
Court that "Moreover, this Court has held
in
Smt.
Nagawwa
v.
Veeranna
Shivalingappa Konjalgi and Ors. [(1976)
3 SCC 736 :(AIR 1976 SC 1947)]
thatwhether the reasons given by the
Magistrate issuing process under Section
202 or 204 Cr.P.C. were good or bad,
sufficient or insufficient, cannot be
examined by the High Court in the
revision. All that the High Court,
however, could do while exercising its
powers of revision under Section 397
Cr.P.C when the order issuing process
under Section 204 Cr.P.C. was under
challenge was to examine whether there
were materials before the Magistrate to
take a view that there was sufficient
ground
for
proceeding
against
the
persons to whom the processes have been
issued under Section 204 Cr.P.C ".

20. Section 204 of the Code deals
with the issue of process, if the Magistrate
after taking cognizance of a case, upon
consideration of the materials before him
i.e., the complaint, examination of the
complainant and his witnesses or report of
inquiry, if any, thinks that there is a prima
facie case for proceeding in respect of an
offence, he shall issue process against the
accused. It has to be reminded that a wide
discretion
has
been
given
to
the
magistrate to grant or refuse the issuance
of process and it must be judicially
exercised. A person ought not to be
dragged into Court to face criminal trial
merely because a complaint has been filed
and the same has been supported by two
witnesses. No doubt the Magistrate is
duty bound to issue process if a prima
facie case has been made out and it cannot
be refused merely because he thinks that
it is unlikely to result in a conviction.
However, the words "sufficient grounds
for proceeding" appearing in the Section
are of immense importance as they amply
suggest that an opinion is to be formed by
the Magistrate only after due application
of judicial mind that there are sufficient
grounds for proceeding against the
2 All. Dr. Vishnu Chandra Tripathi & Ors. Vs. State of U.P. & Anr.
2267
accused(s) and formation of such an
opinion is to be reflected in the order
itself. The order is liable to be set aside if
no reason is given therein while coming
to such conclusion that there is prima
facie case against accused or the reasons
given turns out to be ex facie incorrect or
the facts are highly improbable which
could not be believed by a person of
common prudence.

21. Coming back to the facts of the
present case the allegations of addressing
with castiest remark have been levelled by
the complainant Bindra Pasi against the
appellants, namely, Dr. Vishnu Chandra
Tripathi, who was the Principal of R.K.
College Jaunpur, Sudhakar Maurya, who
was the Accountant of the College and
Sanjay Kumar Singh, who at that point of
time was the Head Clerk of the College.
The allegations are also with regard to the
fact that the complainant was physically
assaulted. However, in the end of the
complaint it has been mentioned that due
to poverty he could not get himself
medically examined. The allegations have
also
been
levelled
against
all
the
appellants that the appellants also dragged
the complainant towards their vehicles. It
is apparent on record that the appellants
are resident of Jaunpur and Bindra Pasi
complainant who admittedly works as
domestic help in the house of Dr. Shiv
Prasad Ojha situated at Bahraich. It is
highly improbable that these three persons
will go to another district, namely,
Shrawasti i.e. at the house of Dr. Shiv
Prasad Ojha andwill do "marpit" and will
drag complainant towards their vehicles
without any intimidation given by the
complainant. The story as put forth by the
complainant in his complaint is highly
improbable
and
unacceptable.
Many
documents have been placed on record by
the appellants which shows that Dr. Shiv
Prasad Ojha was earlier the Principal of
R.K. College, Jaunpur and there he
committed some financial illegalities and
an enquiry was being conducted against
him. It is also stated on behalf of the
appellants that an FIR was also lodged by
appellant no.1, namely, Dr. Vishnu
Chandra Triapthi, Principal of the College
against Dr. Shiv Prasad Ojha and others
pertaining to threatening him in lieu of
issuance
of
a
non-encumbrance
certificate, a copy of which has been
provided on record, which was registered
as Case Crime No.63 of 2019. By
referring
to
the
above
mentioned
documents and FIR it has been stated by
the appellants that when Dr. Shiv Prasad
Ojha failed to pressurize the appellants for
issuance of a false non-encumbrance
certificate, he manufactured this criminal
case through his domestic help, namely,
Bindra Pasi (complainant). However, the
defence
of
the
appellants
(accused
persons)
could
not
be
taken
into
consideration at this stage as the order of
the Magistrate, whereby the appellants
have been summoned is to be scrutinized
on the basis of facts and evidence/
material which was available with the
Magistrate, at the time of issuance of
process.Even if the material which has
been placed by the appellants before this
Court is excluded from consideration the
allegations of complaint and evidence of
the prosecution witness recorded under
Section 202 Cr.P.C. cannot be accepted
being highly improbable.

22. Three persons (appellants) stated
to have assaulted the complainant and
injuries have also stated to have been
received by himbuthis defence that due to
poverty he could not get his injuries
examined, could not be accepted. More-so
2268 INDIAN LAW REPORTS ALLAHABAD SERIES
in the background of the fact that when
the alleged assault took place, Dr. Shiv
Prasad Ojha (his employers) was inside
the house and even if there was some
expenses expected to be incurred in
medical examination the same might have
been beared by Dr. Shiv Prasad Ojha.
Secondly the motive of doing all these
illegal activities as alleged by the
complainant
is
missing.
The
pivot
question is, that as to whyappellants went
to the house of Dr. Shiv Prasad Ojha and
for what purpose?, this has neither been
alleged in the complaint nor has been
stated in the evidence of the complainant
or any of his witnesses. It is also
significant the factum of Dr. Shiv Prasad
Ojha was the Principal of a College where
presently appellants are working in
different - capacities has been deliberately
concealed in the complaint and in totality
of circumstances the allegations could not
be believed by a prudent person.

23. It is to be remembered that
cognizance of an offence on complaint is
taken for the purpose of issuing process to
the accused. Since it is a process of taking
judicial notice of certain facts which
constitute an offence, there has to be
application of mind as to whether the
allegations
in
the
complaint,
when
considered along with the statements
recorded
or
the
inquiry
conducted
thereon, would constitute any offence so
as to call a person to appear before the
criminal court. It is not a mechanical
process or matter of course, but as held by
this Court in Pepsi Foods Limited
(supra), to set in motion the process of
criminal law against a person is a serious
matter and it must reflect that the
Magistrate has applied his mind to the
facts and the statements and he is satisfied
that there is sufficient ground for
proceeding further in the matter by asking
the person against whom the violation of
law is alleged, to appear before the court.
The satisfaction of the ground for
proceeding further would mean that the
facts alleged in the complaint would
constitute
an
offence,
and
when
considered along with the statements
recorded, would, prima facie, make the
accused answerable before the court. No
doubt, nolengthy formal order or a
detailed order is required to be passed at
that stage of 204 Cr.P.C. but the Code of
Criminal Procedure requires a speaking
order to be passed Under Section 203 of
Code of Criminal Procedure when the
complaint is being dismissed and that too
the reasons need to be stated only briefly.

24. In other words, the Magistrate is
not to act as a post office in taking
cognizance of each and every complaint
filed before him and issue process as a
matter of course. There must be sufficient
indication in the order passed by the
Special Judge that he is satisfied that the
allegations in the complaint constitute an
offence and when considered along with
the statements recorded and inquiry report
of investigation Under Section 202 of
Code of Criminal Procedure, if any, the
accused is answerable before the criminal
court and there is sufficient ground for
proceeding against the accused Under
Section 204 of
Code of Criminal
Procedure,
by
issuing
process
for
appearance. Application of mind is best
demonstrated by disclosure of mind on
the satisfaction. If there is no such
indication in a case where the Special
Judge proceeds Under Sections 190/204
of Code of Criminal Procedure, the
superior Court in Appeal is bound to
invoke its power in order to prevent abuse
of the power of the criminal court. To be
2 All. Jalveer & Ors. Vs State of U.P. & Anr.
2269
called to appear before criminal court as
an accused is serious matter affecting
one's dignity, self respect and image in
society. Hence, the process of criminal
court shall not be made a weapon of
harassment.

25. Having gone through the order
passed by the Special Judge, I am
satisfied that there is no indication on the
application of mind by the learned Special
Judge while issuing process to the
Appellants. The allegations made in the
complaint were patently absurd and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is sufficient ground for proceeding
against the appellants. The contention that
the application of mind has to be inferred
from the fact and circumstances of the
case cannot be appreciated. Though no
lengthy formal order is required at the
stage of Section 204 Code of Criminal
Procedure, there must be sufficient
indication, in the summoning order, with
regard to the application of mind by the
trial court to the facts constituting
commission of the offence and the
statements recorded Under Section 200
and 202 of Code of Criminal Procedure so
as to assess sufficiency to proceed against
the offender. No doubt the veracity of the
allegations is a question of evidence but
here the question is not about veracity of
the allegations only, but whether those
who are being summoned to face trial, are
answerable at all before the criminal
court. There is no indication in that regard
in the summoning order passed by the
learned Special Judge. The summoning
order dated 29.3.2019 passed by the
special Court has been passed in utter
disregard to the law laid down in the
above mentioned cases and therefore the
same could not be allowed to stand.

26. Resultantly the Appeal filed by
the appellants suceeds and is Allowed and
the order dated 29.3.2019 passed by the
Special Judge SC/ST Act (Prevention of
Atrocities), Act, Bahraich in Criminal
Case No. 46 of 2019 is set aside.
----------

(2019)10ILR A 2269

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Transfer Application (Criminal) No. 378 of 2019

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

Counsel for the Applicants:
Sri Kuldeep Singh Chahar

Counsel for the Opposite Parties:
G.A., Sri M.L. Jain

A. Code of Criminal Procedure, 1973 -
Section
407-application-rejection-trial
delayed, by getting it transferred -
adjournment
was
sought-nonappearance of counsel and accused on
the date given-issue of warrant against
accused by court was the ground for
transfer.

B. It has been specifically mentioned by
the Trial Judge that newly engaged
Senior Counsel for defence, has sought
an adjournment of the case and given an
assurance that he will argue the case on
the only date requested by him. This
date was given to him. On that particular
date, none of the accused appeared nor
the counsel appeared, which compelled
the court for issuing warrants against
the accused persons and this was made a