# Hariram Verma & Ors v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 343
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-03
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hariram-verma-ors-v-state-of-u-p-anr-43836
- **Pages:** 6

## Text

5 All. Hariram Verma & Ors. Vs State Of U.P. & Anr.

343
therefore, does not stand to any prejudice on the alleged miscalculation as noted above nor failure of justice
is occasioned. His liberty is subject to law and can claim protection before the trial court itself.

18. Coming to the parameters of any such inquiry, paragraph 14 of the judgment in the case
of State of Maharastra (supra) lays down the manner and the ingredients of recording a satisfaction for
granting sanction. Even if any perversity is alleged, the same would be dependent on the facts on the basis
whereof such allegations are made and which is always subject to any inquiry and trial before the concerned
court. Interfering in a writ jurisdiction would therefore be interfering with the procedure of law which has
been laid down through a valid piece of legislation.The writ jurisdiction being an extraordinary remedy, the
same should not be invoked unless there are compelling reasons to do so."

17. This Court has also recently examined the validity of the sanction order in Crl. Misc. Writ Petition
No.7362 of 2016 (Pradeep Kumar Vs. State of U.P. and 2 Others) which was also dismissed on 6.4.2016 in
which similar contention was raised by the counsel for the petitioner..

18. The case law which has been relied upon by the learned counsel for the petitioner of the Apex Court
in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (supra), the proposition of law as
enumerated therein is not disputed but in the instant case is distinguishable from the facts of the said case. In
the present case it cannot be said that the competent authority passed the impugned order without application
of mind.

18. Thus, in view of the foregoing discussions, we do not find any flaw in the impugned order dated
16.10.2015 passed by the competent authority granting sanction for prosecution of the petitioner, hence, the
prayer for quashing the same is hereby refused. The petition lacks merit. It is, accordingly, dismissed.

19. In compliance of the Court's order dated 13.4.2016 and 26.4.2016, the personal affidavit of Principal
Secretary (Home),Government of U.P. Lucknow shall be filed by Sri Imran Ullah, learned Additional
Advocate before the Registrar General of this Court, who shall place the same before us in our Chambers as
soon as the same is filed.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Application U/S 482 No.- 8041 Of 2015

Hariram Verma & Ors. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicants:
344 INDIAN LAW REPORTS ALLAHABAD SERIES
Mayank Srivasrava, Jitendra Kumar Singh

Counsel for Opposite Parties:
Govt. Advocate, Fakhr Uz Zaman

The application u/s 156(3) CrPC was registered as complaint case, in which complainant examined him u/s200
CrPC and his wife and son u/s 200 CrPC. Then the Magistrate concerned had passed impugned order of
summoning dated 02-09-2014 by which the five accused named in complaint were summoned for offences
u/ss 323, 504, 506, 452 IPC. This complaint case and the summing order is under challenge in present
petition by applicants, who are summoned accused of that case.

Court held 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. 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. 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.

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 impugned summoning order of the court below is defective and liable to be set aside.

List of Cases Cited:

1. M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118
2. Paul George vs. State, 2002 Cri.L.J. 996
3. S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89
4. Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Heard learned counsel for the applicants and learned AGA for the State. In this case none
was present on behalf of O.P. No.-2 (complainant) at the time of hearing.

2. This application under section 482 Cr.P.C. was preferred for quashing the proceedings of
complaint case No. 2908/ 2014 Laxmi Narain v. Hariram Verma & others u/ss 323, 504, 506, 452
IPC pending in the court of Chief Judicial Magistrate, Jhansi and the summoning order dated 0209-2014 passed in it.

3. Uncontroverted facts in present petition are that the applicants and O.P. No.-2 and are
neighbours. Smt. Bhawna is the daughter Laxmi Narain O.P. No.-2 (complainant) who was married
with Kaushal Kishor, resident of Jalaun, but had lefthim. then her husband had lodged FIR in police
station Konch, district Jalaun on 04-07-2013 in which he mentioned his doubt that she had gone
5 All. Hariram Verma & Ors. Vs State Of U.P. & Anr.

345
with Nitin, s/o Hariram Verma (applicant No.-2). In that case alleged victim Smt. Bhawna had filed
affidavit before that her mother is a lady of bad character who had obtained money and forcibly got
her (Bhawna) married with Kaushal Kishor. So she left her husband. But her mother is still forcing
her to go with her husband. She has danger from her mother and her accomplices who want to have
illicit relations with her. Her husband had also lodged a criminal case on incorrect facts.

4. The O.P. No.-2 (complainant) had filed application u/s 156(3) CrPC that his daughter his
daughter was abducted in presence of Kaushal Kishor by Hariram Verma, Krishna Kumar @ Nikki,
Smt. Rani (w/o Hariram Verma), Km. Shivani and Rubi (daughters of Hariram Verma) on 18.10
2013. Then on 18.10.2013 these persons informed these facts to Hemant (s/o Laxmi Narain O.P.
No.-2) and started abusing him. When he protested then these five persons chased him in house of
complainant and beaten him in his house.

5. Said application u/s 156(3) CrPC was registered as complaint case, in which complainant
examined him u/s200 CrPC and his wife and son u/s 200 CrPC. Then the Magistrate concerned had
passed impugned order of summoning dated 02-09-2014 by which the five accused named in
complaint were summoned for offences u/ss 323, 504, 506, 452 IPC. This complaint case and the
summing order is under challenge in present petition by applicants, who are summoned accused of
that case.

6. Learned counsel for the applicants contended that entire material available on record make
it clear that no such incident had happened and no offence has been committed, and applicants are
being unnecessarily harassed. The complainant (OP no.-2) had falsely instituted the complaint case
in which applicants were summoned on the basis of false evidence. This is abuse of process of
court. In the interest of justice and for preventing abuse of legal process in the form of complaint
case and providing justice, the inherent power of court should be exercised and proceedings of said
complaint case should be quashed. He also contended that there is material contradictions in
statements of witnesses examined under Section 200 and 202 CrPC. But those facts were ignored
by the court below which had passed summoning order in question which should be set aside along
with complaint.

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. 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
346 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
5 All. Hariram Verma & Ors. Vs State Of U.P. & Anr.

347
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.

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 hld 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
348 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

17. For the reasons discussed above, the impugned summoning order of the court below is
defective and liable to be set aside. Since the possibility of conviction of applicants is bleak and
continuation of criminal case would put the accused to great oppression and prejudice, and extreme
injustice would be caused to them by not quashing the criminal. Therefore it would be unfair and
contrary to interest of justice to continue the criminal proceeding and direct the applicants to go
through protracted procedure of trial. Therefore the continuation of criminal proceeding in this case
would tantamount to abuse of process of law.

18. Therefore, by exercising inherent jurisdiction of this Court and for preventing abuse of
process of Court, this application u/s 482 CrPC Is allowed. The proceedings of complaint case no.
2908/ 2014 Laxmi Narain v. Hariram Verma & others u/ss 323, 504, 506, 452 IPC pending in the
court of Chief Judicial Magistrate pending in the Court of Chief Judicial Magistrate, Jhansi are
hereby quashed.

19. Let a copy of this order was sent to the trial court concerned immediately for ensuring
compliance.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.05.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 9424 Of 2016

Mohd. Harun ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Sudhir Pande