# Smt. Bhan Mati Devi v. The State of U.P. & Ors

- **Citation:** (2013) 1 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-19
- **Bench:** Ajai Lamba
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-bhan-mati-devi-v-the-state-of-u-p-ors-42493
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 482summoning
order-without
disclosing
material-without
giving
reasonsseriously
affects
the
rights
of
an
accused-Revisional Court rightly set-aside the order no interference called farapplication rejected.

Held: Para-11

Considering
the
above,
it
becomes
apparent that the order passed by the
Magistrate summoning the respondent
accused, is neither a reasoned order nor
a speaking order. The order does not,
even
briefly,
indicate
the
material
brought by the complainant on record, in
context of the ingredients of the offence
allegedly
committed.
Sufficiency
of
reason to summon the petitioner as
accused has not been shown. In this
view of the matter, this Court does not
find
that
the
revisional
court
has
committed any jurisdictional error in
setting aside the order of summoning.
This court does not trace any illegality in
the order passed by the revisional court.
Case Law discussed:
(2004) 1 SCC 547; 1974 ICR 120 (NIRC);
(1971) 2 QB 175

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Subsection (5) : On proof that any
wife in whose favour an order has been
made under this Section is living in
adultery, or that without sufficient reason
she refuses to live with her husband, or
that they are living separately by mutual
consent, the Magistrate shall cancel the
order.

27. A bare perusal of the aforesaid
provisions undoubtedly shows that the
wife shall not be entitled to receive any
maintenance from her husband, if she is
living
in
adultery.
However,
the
maintenance can be denied on proof that
the wife is living in adultery. In this case
the Revisionist has made bald allegations
against his wife but he has produced no
proof in this regard. Learned Magistrate,
therefore, rightly not considered the
allegations of adultery made by the
Revisionist.

28. In view of the discussion made
above, the Revision has no merits and
accordingly dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2013

BEFORE
THE HON'BLE AJAI LAMBA,J.

U/S 482/378/407 No. - 3481 of 2011

Smt. Bhan Mati Devi

...Petitioner
Versus
The State Of U.P And Ors. ...Respondents

Counsel for the Petitioner:
Sri Prem Singh
Sri Angrej Nath Shukla
Sri Pawan Shukla
Sri Prashant Singh Atal

Counsel for the Respondents:
Govt. Advocate

Code of Criminal Procedure-Section 482summoning
order-without
disclosing
material-without
giving
reasonsseriously
affects
the
rights
of
an
accused-Revisional Court rightly set-aside the order no interference called farapplication rejected.

Held: Para-11

Considering
the
above,
it
becomes
apparent that the order passed by the
Magistrate summoning the respondent
accused, is neither a reasoned order nor
a speaking order. The order does not,
even
briefly,
indicate
the
material
brought by the complainant on record, in
context of the ingredients of the offence
allegedly
committed.
Sufficiency
of
reason to summon the petitioner as
accused has not been shown. In this
view of the matter, this Court does not
find
that
the
revisional
court
has
committed any jurisdictional error in
setting aside the order of summoning.
This court does not trace any illegality in
the order passed by the revisional court.
Case Law discussed:
(2004) 1 SCC 547; 1974 ICR 120 (NIRC);
(1971) 2 QB 175

(Delivered by Hon'ble Ajai Lamba,J.)

1. It appears that Smt. Bhan Mati
Devi, the petitioner instituted a complaint
against respondent nos.2 to 9 briefly
stating that her land has been subjected to
sale by way of a forged sale deed and
through cheating and conspiracy. Vide
order Annexure No.3 dated 27.7.2010, the
respondents were summoned to stand trial
for commission of offence under Section
419, 420, 467, 468 I.P.C.

2. The respondent accused preferred
a revision petition against order of
summoning which has been allowed vide
1 All] Smt. Bhan Mati Devi Vs. The State of U.P. & Ors.
197
impugned
order
dated
15.6.2011,
Annexure No.5, passed by Additional
Sessions Judge, Gonda essentially on the
plea that order passed by the Magistrate
does
not
disclose the
reasons
for
summoning the respondents. It does not
meet the test of a speaking order or a
reasoned order. The case has been
remanded back to the Magistrate for
adjudication afresh.

3. When the contents of the order of
summoning have been put to learned
counsel for the petitioner, even learned
counsel for the petitioner has not been
able to show that even a brief mention has
been made to the relevant material from
the complaint and the statements of the
witnesses recorded, in context of the
ingredients of the offence allegedly
committed by the respondent accused.
Learned counsel has not been able to
show from the order of summoning that
relevant reasons, even briefly, have been
given for summoning the respondent
accused.

4. After a complaint is made,
statements of relevant witnesses are
recorded. While considering the pleadings
in the complaint in context of the
evidence that has come on record, the
Magistrate is required to see whether
ingredients of alleged offence are prima
facie satisfied or not, so as to summon the
accused. It serves two purposes ; the first
being to see as to prima facie, what
offence has been committed and ;
secondly as to which of the alleged
offender needs to be summoned.

5. An order of summoning, seriously
affects the rights of an accused. After an
accused is summoned to stand trial, such
accused
is
generally
subjected
to
protracted trial and is required to appear
on every date fixed by the trial court. In a
large number of cases baseless complaints
are filed so as to settle old scores or to
pressurize the other party to settle a civil
dispute, in abuse of process of the Court
and in abuse of process of the law.

6. There is another aspect of the
matter viz an order of summoning is open
to challenge in revisional jurisdiction or
under Section 482 Cr.P.C. A Court speaks
through its orders. If such an order is
without giving any reason, the revisional
court cannot possibly know as to what
transpired in the mind of the summoning
court so as to call for passing an order of
summoning. Even the accused is not able
to make out as to for what reasons, he has
been summoned to stand trial for
commission of a particular offence.

7. Considering the scope of an order
of
summoning,
ordinarily
material
available on record is required to be
considered in context of the ingredients of
the offence allegedly committed.\ In case
it is prime facie found that the ingredients
of the offence are satisfied or complete,
on going through the contents of the
complaint and supporting evidence, the
court would be required to summon the
accused who have prima facie committed
the offence for commission of that
offence. The summoning court is not
expected to summon an accused for
commission of an offence without any
application of mind, in a casual and
cursory manner.

8. Failure to give reasons amounts to
denial of justice. Reasons are live links
between the mind of the decision makers
to the controversy in question and the
decision or conclusion arrived at. Reasons
198 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
substitute subjectivity by objectivity.
Absence of reasons in an order render it
virtually impossible for the courts to
perform their appellate function or
exercise the power of judicial review in
adjudging the validity of the decision.
Right to reasons is an indispensable part
of a sound judicial system. The court is
required to give reasons, at least sufficient
to indicate an application of mind to the
matter.

9. Another rationale in this context
is that the affected party can know why
the decision has gone against him. One of
the salutary requirements of natural
justice is spelling out reasons for the order
made, in other words, a speaking order. In
the above regards, reference may be made
to (2004) 1 SCC 547 : State of Punjab Vs.
Bhag Singh in which reference has been
made to 1974 ICR 120 (NIRC) Alexander
Machinery (Dudley) Ltd. Vs. Crabtree',
and (1971) 2 QB 175, Breen v.
Amalgamated' Engg. Union.

10. A heavily burdened judicial
system would be further burdened with
more cases, if without any good reason, a
person is summoned to face long drawn
litigation. One such case does not come in
isolation.
During
the
course
of
proceedings, various orders are passed
which
are
amenable
to
revisional/appellate
jurisdiction.
Such
burden of dispensable and avoidable
litigation, thus, is also carried to higher
courts.

11. Considering the above, it
becomes apparent that the order passed by
the Magistrate summoning the respondent
accused, is neither a reasoned order nor a
speaking order. The order does not, even
briefly, indicate the material brought by
the complainant on record, in context of
the ingredients of the offence allegedly
committed. Sufficiency of reason to
summon the petitioner as accused has not
been shown. In this view of the matter,
this Court does not find that the revisional
court has committed any jurisdictional
error in setting aside the order of
summoning. This court does not trace any
illegality in the order passed by the
revisional court.

12. The petition is accordingly
dismissed.

13. Complainant is directed to
appear before the Magistrate on the next
date fixed by the Magistrate.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 4219 of 2011

Nirdosh Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.S. Yadav
Sri S.K. Yadav

Counsel for the Respondents:
Sri Subhash Chandra
C.S.C.

Constitution
of
India,
Article
226domestic
enquiry
and
criminal
proceeding initiated for causing death of
occupant-Indica car-the petitioner was
driving motorcycle met with accident
with Maruti car firing by official rifle
amount
to
misused
of
his
post
-
unlawfully used rifle by which the image