# Mubarak & Ors v. State of U.P. & Anr

- **Citation:** (2025) 11 ILRA 1396
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-17
- **Case number:** Application U/S 482. No. 39247 of 2018
- **Bench:** Jai Prakash Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mubarak-ors-v-state-of-u-p-anr-52752
- **Pages:** 7

## Headnote

Whether the Magistrate's summoning order,
passed without recording reasons or judicial
11 All. Mubarak & Ors. Vs. State of U.P. & Anr.
1397
satisfaction, can be sustained in law, or whether
it requires quashing and reconsideration under
Section 482 Cr.P.C.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3), 200,
202, 482 - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 504, 506 -
Application under Section 482 Cr.P.C. - seeking
quashing of summoning order and revisional
order - complaint initially filed under Section
156(3) Cr.P.C. - treated as complaint case -
investigation - statements under Sections 200 &
202 Cr.P.C., - but no chargesheet filed - plea of
applicant that dispute is purely civil - trial court
passed
mechanical
order
without
judicial
reasoning - court finds that summoning order
lacked application of judicial mind, complaint
vague and unbelievable, revisional order also
unsustainable
-
held
-
summoning
and
revisional orders set aside - further, matter
remanded
for
fresh,
reasoned
order
-
consequently, Application allowed.(Para - 9, 10,
11, 12)

 Application Allowed. (E-11)
CASE LAW CITED
Mahboob & Ors vs. State of U.P. & Anr., 2017
(2) JIC 320 (All) (LB)

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860.

LIST OF KEYWORDS
Quashing of proceedings - Quashing
of
summoning order - Judicial discretion - Civil
dispute vs. criminal colour - Sale deed execution
- Mutation and possession - Mechanical order.

CASE ARISING FROM
Summoning order dated 19.02.2013 (Judicial
Magistrate, Meerut) - Revisional order dated
30.08.2017 (Additional Sessions Judge, Court
No.14, Meerut) - Proceedings in Complaint Case
No.236 of 2012 (Rashid vs. Saleem & others)
under IPC Sections 420, 467, 468, 471, 504,

## Text

1396 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit in support of the prayers made in
the application, ignoring the same and then
putting the applicant to trial dragging both
sides, i.e. prosecution and defence, for
months and years together for the purposes
of getting recorded the statement of a
hostile witness/prosecutrix/alleged victim,
and then, based upon the same, waiting for
the concerned court to pass a judgment of
acquittal, would be an irony of fate. It
would be surprising to see as to why
precious time and resources of judicial
system should be wasted in adopting such a
recourse where result is bound to be the
same,
i.e.,
discharge/acquittal
of
the
accused.
Further,
there
are
multiple
practical difficulties faced and pains
sufferred by the litigants in District Courts,
to which at least this Court cannot turn its
face. Compelling a lady in such matters to
visit court premises for months and years
for the purposes of getting her own
husband acquitted where he is facing threat
of punishment for doing some wrong with
his wife which she does not admit, would
be an instrument of harassment. Apart from
making
recurring
expenditures
and
sometimes something over and above what
is lawfully required, facing all evil eyes,
criticism and all sorts of comments which
may be against dignity of a woman, can
also not be ignored. Therefore, if the
Sessions Court can acquit an accused of a
non-compoundable offence merely based
upon
the
statement
of
a
hostile
victim/witness, as to why the High Court,
at any stage of proceedings, cannot bury
the lis by relying upon the similar statement
of the alleged victim made on oath/affidavit
or by appearing in person before the High
Court itself, is something which is not
understandable. Therefore, self imposed
restrictions on exercise of inherent powers
under the Code would defeat the very
purpose of law.

CONCLUSION

25.
In
the
present
case,
once
matrimonial
relationship
between
the
applicant and the alleged victim pursuant to
marriage solemnized after attaining the age
of majority on 23.06.2025 and the same has
been registered on 24.06.2025 under U.P.
Marriage Registration Rules, 2017; the
certificate of marriage is also on record
and, further, the affidavit in support of the
application has been filed by the alleged
victim herself, it is a fit case where inherent
powers under Section 528 BNSS should be
exercised, otherwise this Court would fail
in its duty cast upon it by legislature to pass
an order to secure ends of justice.

26. The application is, accordingly,
allowed.

27. The proceedings of the aforesaid
case are hereby quashed.
----------
(2025) 11 ILRA 1396
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.11.2025

BEFORE

THE HON'BLE JAI PRAKASH TIWARI, J.

Application U/S 482. No. 39247 of 2018

Mubarak & Ors. .....Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Abhitab Kumar Tiwari

Counsel for the Opposite Parties:
G.A., Santosh Singh

ISSUE FOR CONSIDERATION
Whether the Magistrate's summoning order,
passed without recording reasons or judicial
11 All. Mubarak & Ors. Vs. State of U.P. & Anr.
1397
satisfaction, can be sustained in law, or whether
it requires quashing and reconsideration under
Section 482 Cr.P.C.

HEADNOTES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 156(3), 200,
202, 482 - Indian Penal Code, 1860 -
Sections 420, 467, 468, 471, 504, 506 -
Application under Section 482 Cr.P.C. - seeking
quashing of summoning order and revisional
order - complaint initially filed under Section
156(3) Cr.P.C. - treated as complaint case -
investigation - statements under Sections 200 &
202 Cr.P.C., - but no chargesheet filed - plea of
applicant that dispute is purely civil - trial court
passed
mechanical
order
without
judicial
reasoning - court finds that summoning order
lacked application of judicial mind, complaint
vague and unbelievable, revisional order also
unsustainable
-
held
-
summoning
and
revisional orders set aside - further, matter
remanded
for
fresh,
reasoned
order
-
consequently, Application allowed.(Para - 9, 10,
11, 12)

 Application Allowed. (E-11)
CASE LAW CITED
Mahboob & Ors vs. State of U.P. & Anr., 2017
(2) JIC 320 (All) (LB)

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860.

LIST OF KEYWORDS
Quashing of proceedings - Quashing
of
summoning order - Judicial discretion - Civil
dispute vs. criminal colour - Sale deed execution
- Mutation and possession - Mechanical order.

CASE ARISING FROM
Summoning order dated 19.02.2013 (Judicial
Magistrate, Meerut) - Revisional order dated
30.08.2017 (Additional Sessions Judge, Court
No.14, Meerut) - Proceedings in Complaint Case
No.236 of 2012 (Rashid vs. Saleem & others)
under IPC Sections 420, 467, 468, 471, 504,
506.

APPEARANCE OF PARTIES
Counsel for Applicants: Shri Sri Abhitab Kumar
Tiwari.
Counsel for Opposite Parties: Shri Santosh Singh
and learned A.G.A.

(Delivered by Hon'ble Jai Prakash Tiwari, J.)

1. Heard Sri Abhitab Kumar Tiwari,
learned counsel for the applicants, Sri
Santosh Singh, learned counsel for opposite
party no.2, learned AGA for the State and
perused the record.

2. The present 482 Cr.P.C. application
has been filed to quash the orders dated
19.02.2013 passed by Judicial Magistrate,
on the complaint filed by the opposite party
no.2 and order date 30.08.2017 passed by
he Additional Session Judge, Court No.14
Meerut in Revision No.66 of 2014, as well
as entire proceedings of Complaint Case
No.236 of 2012 (Rashid Vs. Saleem and
others) under Sections- 420, 467, 468, 471,
504, 506 of IPC Police Station Saroorpur
District Meerut, pending in the court of
Judicial Magistrate, Sardhana, District
Meerut.

3. It is argued by learned counsel for
the applicants that Late Rafik (father of
applicant no.2 to 4 and husband of
applicant no.5) was owner of land in
dispute. The agriculture Patta was allotted
to him in the year 1975 over the land and
during consolidation proceedings, he was
declared owner with transferable right vide
order dated 21.07.2005 passed by the
Settlement Officer Consolidation Meerut.
On 26.09.2006 the father of applicants
executed the sale deed in favour of
complainant. It is further argued that at that
time the complainant had not moved any
application for mutation and after about six
years he had filed the complaint against the
applicants. On his complaint, the learned
court
concerned
has
summoned
the
applicants. It is further argued that
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant nos. 1 to 5 have no concerned
with the sale deed as neither they are
executor nor beneficiary. It is next argued
that the applicant nos. 6 & 7 are only
marginal witnesses of sale deed. It is a
purely civil dispute which has been given
criminal colour. It is further argued that in
absence of any finding recorded by the
court concerned, on the basis of the
averments made in the complaint, the
statements recorded under Sections 200 &
202 of Cr.P.C, no prima facie satisfaction
was recorded by the court concerned for
summoning the applicants under section
420, 504, 506 IPC.

4. On the other hand, learned AGA
and learned counsel for opposite party no.2
have opposed the aforesaid argument with
the contention that it is clearly mentioned
in the complaint that possession over the
property has not been given till date.

5. It reveals from the perusal of the
record that initially an application under
Section 156(3) Cr.P.C. has been filed by
the complainant (herein opposite party
no.2), the same has been treated as
complaint case and thereafter the statement
of the complainant and the witnesses have
been recorded under Section 200 and 202
of Cr.P.C. The learned Magistrate vide
order dated 19.02.2013 summoned the
present applicants under Sections-420, 504
& 506 IPC It is also evident from the
record that the criminal revision filed
against the impugned summoning order
before the Additional Session Judge Court
No.14, Meerut but the same has been
rejected due to non-presence of the
applicants/revisionists.

6. It transpires from the record that the
sale deed, which is the base of the complaint,
was executed by the father of the applicants
no.1 to 3 and husband of applicant no.4.
There father was the sole vendor of the sale
deed. It is also evident from the record that at
the time of execution of sale deed, the father
of applicants no.2 to 4 (Rafik) was
Bhumidhar with transferable rights by the
order of Consolidation Officer, Sardhana
dated 21.07.2005 passed in Suit No.610 of
but later on his name was expunged on some
complaint after his death. Thereafter, the
complaint against the present applicants has
been filed by the opposite party no.2.

7. As per the submission of counsel for
the applicants, late Rafik (father of applicants
no.2 to 4 and husband of applicant no.5) was
the actual owner of the disputed land through
Patta and also declared the owner with
transferable
rights
vide
order
dated
21.07.2005
of
Consolidation
Officer,
Sardhana. The sale deed was executed in the
year 2006 and later on he died. On the basis
of complaint, the name of Rafik was struck
off from the revenue record and after the
lapse of long period, the present complainant
(opposite party no.2) has been filed complaint
against the present applicants.

8. In the judgement of this Court in the
case of Mahboob and others vs. State of
U.P. and another, reported in 2017 (2) JIC,
320, (All) (LB). Paragraph Nos. 10, 11 and
12 of the said judgement are relevant for the
controversy in hand and are accordingly
reproduced herein under:-

"(10) Hon'ble Apex Court has
further dealt with the nature of inquiry which
is required to be conducted by the Magistrate
and referring the case of Vijay Dhanuka
(supra) it was held as under:

"14. In view of our answer to the
aforesaid question, the next question which
falls for our determination is whether the
11 All. Mubarak & Ors. Vs. State of U.P. & Anr.
1399
learned Magistrate before issuing summons
has held the inquiry as mandated under
Section 202 of the Code. The word "inquiry
" has been defined under Section 2(g) of the
Code, the same reads as follows:

"2. (g) ''inquiry' means every
inquiry, other than a trial, conducted under
this Code by a Magistrate or court,"

It is evident from the aforesaid
provision, every inquiry other than a trial
conducted by the Magistrate or the court is
an inquiry. No specific mode or manner of
inquiry is provided under Section 202 of
the Code. In the inquiry envisaged under
Section 202 of the Code, the witnesses are
examined whereas under Section 200 of the
Code, examination of the complainant only
is necessary with the option of examining
the witnesses present, if any. This exercise
by the Magistrate, for purpose of deciding
whether or not there is sufficient ground for
proceeding against the accused, is nothing
but an inquiry envisaged under Section 202
of the Code."

(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 petitioners under
Section 204 CrPC. 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 CrPC are perused and
accused are summoned such order per se
itself illegal which could not stand the test
of law."

Reliance is also placed upon the
judgement of 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:-

"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."

Reference may also be made to
the judgement of this Court in the case of
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 16:

"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
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
11 All. Mubarak & Ors. Vs. State of U.P. & Anr.
1401
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
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
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

9. In light of this legal position, I
have gone through the impugned order. A
perusal of this 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
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.

10. Considering the averment of
present case as well as affidavit supporting
it,
the
incorrect
and
unbelievable
complaint case, false implication of the
applicants by informant in his 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 orders
as are liable to be set-aside.

11.
Accordingly,
the
present
application succeeds and is allowed. The
impugned
summoning
order
dated
19.02.2013 and order dated 30.08.2017
passed in Revision No.66 of 2014 are
hereby set-aside and the matter requires
reconsideration.

12.
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.
----------
(2025) 11 ILRA 1402
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 4383 of 2024

Alok Kumar Jain ...Petitioner
Versus
Indra Bhushan Sawhney ...Respondent