# Sunil Pathak & Ors v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Criminal Misc. Application (U/S 482 CR.P.C.) No. 12176 of 2013
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-pathak-ors-v-state-of-u-p-anr-45780
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Indian
Penal Code,1862- Section 395-quashing ofsummoning order-trial court failed to assess the
materials on record-criminal antecedents of any
accused do carry weight but on this ground
alone, the applicants cannot be summoneddifference of averments made in complaint and
statements of complainant put a serious
question mark to the authenticity of the casemoreover, injury report is a procured documentthe court is required to atleast mention in the
order about the prima facie satisfaction for
summoning the accused-the accused cannot be
summoned mechanically merely by writing that
perused the statements u/s 200 and 202 CrPC-
Since it is a cross-case, the impugned order
quashed in a one complaint while proceeding in
other case shall proceed unabated.(Para 17 to
23 & 1 to 5)

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 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 and the law
applicable thereto.(Para 17)

The application is partly allowed. (E-6)

List of Cases Cited:-

## Text

182 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the petitioners on the decisions
of the Apex Court for similar matter under
Sections 149, 147, 452 relied by my brother
(Justice Om Prakash VII) would be
applicable.

8. The guidelines laid down in 2014 6
SCC 466, Navindra Singh and others
versus State of Punjab would apply to the
facts of this case. The material on record
would go to show that end of the justice
would justify exercising the power under
Section 482 of Criminal Procedure Code. I
am also supported in my view by 2013
SCC OnLine Ald 5681, Saifula versus
State of U.P.

9. The petition is accepted. The
proceedings of Complaint Case No.481 of
1989 (Lakhan Singh Versus Basudev and
others), under Sections 323, 147, 149, 452,
504, 506 I.P.C. in the Court of Judicial
Magistrate, Jhansi are quashed and set
aside.

10. The learned Judge to defile the
matter without insisting the presence of
parties.

11. Order be communicated through
the District Judge, Jhansi to concerned
Court by e-mail as expeditiously as
possible.
----------
(2020)06ILR A182
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Misc. Application (U/S 482 CR.P.C.) No.
12176 of 2013
&
Application U/S 482 No. 41464 of 2013

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

Counsel for the Applicants:
Sri Anurag Shukla, B0123, Sri Bharat
Bushan Dubey

Counsel for the Opposite Parties:
A.G.A., Sri Satya Dheer Singh Jadaun, Sri
Mangala Prasad Pandey, Sri Pankaj Pandey

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 482 - Indian
Penal Code,1862- Section 395-quashing ofsummoning order-trial court failed to assess the
materials on record-criminal antecedents of any
accused do carry weight but on this ground
alone, the applicants cannot be summoneddifference of averments made in complaint and
statements of complainant put a serious
question mark to the authenticity of the casemoreover, injury report is a procured documentthe court is required to atleast mention in the
order about the prima facie satisfaction for
summoning the accused-the accused cannot be
summoned mechanically merely by writing that
perused the statements u/s 200 and 202 CrPC-
Since it is a cross-case, the impugned order
quashed in a one complaint while proceeding in
other case shall proceed unabated.(Para 17 to
23 & 1 to 5)

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 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 and the law
applicable thereto.(Para 17)

The application is partly allowed. (E-6)

List of Cases Cited:-

1. Vijay Dhanuka etc. Vs Naijma Mamtaz (2014)
14
SCC
638
6 All. Sunil Pathak & Ors. Vs. State of U.P. & Ors.
183
2. Abhijit Pawar Vs Hemant Madhukar Nimbalkar
& ors. (2017) 3 SCC 528

3. Mehmood UlRehman & ors. Vs Khazir Mohd.
Tunda & ors. AIR (2015) SC 2195

4. Mahboob & ors. Vs. St. Of U.P. & anr. (2017)
2 JIC 320 (All) (LB)

5. Smt. Shiv Kumar & ors. Vs St. Of U.P. & anr.
(2017) 2 JIC, 589, (All) (LB)

6. Hariram Verma & 4 ors. Vs St. Of U.P. & anr.
(2017) 99 ALL CC 104

7. M/s Pepsi Food Ltd.& anr Vs S.J.M. & ors.
(1998 ) UPCrR 118

(Delivered by Hon'ble Rahul Chaturvedi, J.)

[1] On 29.01.2020, Registrar(Listing)
of this Court has apprised me about two
orders of Hon'ble the Apex Court dated
12.09.2019 and 30.01.2020, by which
Hon'ble the Apex Court has expressed its
desire to decide aforementioned cases as
expeditiously as possible within a period of
two months. Since, there was a clear and
unambigous directions from Hon'ble the
Apex Cout, both the applications filed
under Section 482 Cr.P.C. numbered
above, should be taken at top most priority
but for one reason or other, the matter is
being
deferred
till
05.03.2020.
Today(05.03.2020),
this
Court
heard
learned counsel for the parties at length and
judgments are ordered to be dictated in
chamber.

[2] Since parties, its genesis as well
as dates and its events are almost one and
same in both the cases and thus, for the
sake of convience and brevity, the Court
is proposing to decide/dispose of the
matter by one common judgment after
hearing the counsels for both the parties
on merits.

APPLICATION U/S 482 No. -
12176 of 2013 (Sunil Pathak And 7 Others
vs. State of U.P. and Another

[3] Heard Sri Anurag Shukla and Sri Bharat
Bhushan Dubey, learned counsels for the
applicants, Sri Satya Dheer Singh Jadaun,
learned counsel for opposite party as well as
learned A.G.A. Pleadings have been exchanged
between the parties and the matter is ripe for
final submissions.

[4] There are eight applicants who are
jointly invoking the extra-ordinary jurisdiction
of this Court under section 482 Cr.P.C. with the
prayer to quash the entire proceeding of
complaint case no.52 of 2011(Smt. Sunita Vs.
Sunil Pathak and others) under section 395 IPC,
Police
Station-Dibiyapur,
District-Auraiya
pending in the court of Additional Sessions
Judge/Special Judge(D.A.A) District-Auraiya
and summoning order dated 15.02.2013. Bench
of this Court vide its order dated 11.04.2013 has
granted interim protection by staying the
proceedings of the case referred above by
issuing notices to the private parties.

Before deciding the case, it is
imperative to spell out the bare skelton facts of
the case in hand.

[5] Contention raised by learned
counsel for the applicants is that the
contesting parties are at the warring ends
since long. Wayback in the year 1994,
husband and other family members of Ms.
Sunita Tiwari(opposite party no.2) have
brutally assaulted and killed one Ram Asre,
brother of applicant nos. 4, 5 and 6. An FIR
to this effect was lodged by one Ram Das
Pathak
against
five
named
persons
specifying the role of actual assault on the
deceased to one Pintu@Pradyum Tiwari,
husband of opposite party no.2. The said
FIR was registered as Case Crime No.444
184 INDIAN LAW REPORTS ALLAHABAD SERIES
of 1994 under sections 147, 148, 149, 302,
504, 506 IPC, Police Station-Dibiyapur,
District-Etawah.
Few
of
the
named
assailants were on run and the police has
submitted its report under section 173(2)
Cr.P.C. endorsing the names in the column
of "Absconders".

[6] Again, in the year 2007, history
has repeated when husband and family
members of opposite party no.2 again
assaulted and committed yet another
murder of brother of present applicant
namely Ram Das Pathak(now deceased) of
which Ram Swaroop Pathak has got an FIR
registered against seven named accused
persons including the husband of opposite
party no.2, Pintu@Praduman Tiwari as one
of the named accused. The incident took
place on 18.11.2007 at 1:30 p.m. of which
the FIR was got registered on the same day
at 15:30 p.m. as Case crime no.300 of 2007
under sections 147, 148, 149, 302, 307 IPC,
Police Station-Dibiyapur, Distric-Auraiya.

The story set up in the instant FIR
was that at 18.11.2007 around 1:30 in the
afternoon,
informant's
brother
Ram
Das@Allu Pathak and informants neice
Km. Sarita went to purchase some domestic
goods from Hari Kishan Tiwari, a quota
dealer, all of sudden, named accused
persons who are eight in numbers including
Pintu@Praduman Tiwari all armed with
lethal fire arms assaulted upon informant's
brother Ram Das@Allu. All the assailants
armed with deadly fire arms(licensed or
even otherwise) virtually pumped bullets in
the body of deceased Ram Das@Allu
Pathak causing a cold-blooded murder of
the deceased in broad day light in a most
brutal and barbaric way. An FIR of this
case too was registered as Case Crime
No.300 of 2007 under sections 147, 148,
149, 302, 307 IPC, Police StationDibiyapur, District-Auraiya on 18.11.2007
at 15:30 hrs against Pintoo@Praduman
Tiwari and six others causing murder of
Ram Das Pathak@Allu Pathak and injuring
Anuj.

[7] Prompt FIR was got registered at
15:30 hours at Police Station-Dibiyapur,
District-Auraiya. It is next contended that
place of incident is near the shop of Hari
Kishan Tiwari, Quota Dealer, villageChapauli. It is also worthwhile to point out
here that Pintoo@Praduman Tiwari is the
common name in both the case crime
numbers of 1994 as well as 2007.

[8] The next contention raised by
learned counsel is that in order to "create"
counter
pressure/case
and
to
save
themselves from the wrath of the present
FIR i.e. case crime no.300 of 2007,
opposite party no.2, left no stone unturned
to lodge the FIR against the applicants by
creating an imaginary story. When all the
attempts went in vain, thereafter, with the
aid and help of local political leaders, on
06.05.2008(almost
six
months
after),
opposite party no.2 has succeeded in
lodging the FIR as case crime no.300A of
2007 under section 395 IPC against as
many as eleven named accused persons for
committing dacoity on 18.11.2007 around
2:00 p.m. on the same day of which, earlier
FIR, having case crime no.300 of 2007 was
got registered. At this juncture, learned
counsel for the applicants has drawn
attention of the Court to the date and time
of both the incidents. Intrestingly, time and
date of case crime no.300 of 2007 is
18.11.2007 at 1:30 in the day, whereas,
time and date of incident of case crime
no.300A of 2007 is 18.11.2007 itself but at
2:00 p.m, whereby allegations of dacoity
has been pasted upon all the applicants. It is
contended that no plausible justification
6 All. Sunil Pathak & Ors. Vs. State of U.P. & Ors.
185
coming forward explaining the inordinate
delay of six months in lodging the FIR
having Case Crime No.300A of 2007.

[9]

After
conducting
thorough
investigation,
police
has
submitted
"closure report" under section 173(2)
Cr.P.C. on 17.11.2008 in case crime
no.300A of 2007 under section 395 IPC
against applicants. Dissatisified by the
ultimate result of invsetigation of case
crime no.300A of 2007, opposite party no.2
has filed protest petition before the court
below which too was consigned to records
after being rejected on 08.06.2011 and
learned Special Judge, D.A.A. Auraiya has
accepted
the
final
outcome
of
the
investigation and put a seal of approval
over the said "Closure Report. Aggrieved
by the order of Special Judge, D.A.A., an
application under section 482 Cr.P.C. was
preferred before Bench of this Court
bearing No.20615 of 2011 decided on
05.07.2011 and this Court too did not
oblige the opposite party no.2 in upsetting
the orders of Special Judge, D.A.A. and
rejected the aforesaid application, part of
which is quoted hereinbelow :-

"From perusal of the record, it
appears that the learned Special Judge
has passed well reasoned order dated
08.06.2011. The trial court has not
committed any error in passing the
impugned order. Therefore, the prayer for
quashing the aforesaid order is refused.

It shall be open to the applicant
to file a complaint in respect of the
commission of alleged offence. In case,
any complaint is filed by the applicant
before the court concerned, the court
concerned
shall
proceed
further
in
accordance with law.

With the above direction, this
application is finally disposed of. "

[10] While passing the aforesaid order
confirming
the
orders
of
Special
Judge(D.A.A.) Auraiya, a tangent/casual
observation was made by this Court that it
shall be open for the applicant that
applicant, if so advised, may file complaint
in respect of the alleged offence and in case
such
application
is
filed,
the
court
concerned
shall
proceed
strictly
in
accordance with law. There was no
obligation or mandate by the High Court to
file complaint case.

[11]

On
the
strength
of
abovementioned
casual
and
tangent
observation of the court, opposite party
no.2, just to create counter pressure on
23.07.2011, has filed complaint case
against the accused persons with the
allegation
of
committing
dacoity
of
Rs.9,000/- from the complainant. As per
the procedure laid down in Chapter XV of
Cr.P.C., statement of opposite party no.2
was recorded under section 202 Cr.P.C. on
08.08.2011. Thereafter, on 04.10.2011,
statements under section 200 Cr.P.C. of
Mithelesh
Kumari(CW-1),
Shashi
Prabha(CW-2) were recorded and on
27.03.2012
statements
of
Virendra
Kumar(CW-3) and Sita Ram(CW-4) were
recorded. The entire endeavour and attempt
on the part of opposite party no.2 is to
anyhow create counter version/pressure of
the aforementioned muder case may be
diluted and mellow down. In this spree,
they managed to procure the injury report
of one Anurag Krishna the alleged injured
from the doctor on 23.11.2007 which is
annexed
on
record.
Learned
Special
Judge/Additional Sessions Judge, D.A.A.
Auraiya vide order dated 15.02.2013 was
pleased to summon the applicants under
section 395 IPC by passing an order
without furnishing necessary details for
recording his satisfaction it it. It seems that
186 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Judge was over-awed by the
alleged criminal antecendents few of
applicants

[12] Submission advanced by learned
counsel for the applicants is that impugned
summoning order dated 15.02.2013 by
learned Special Judge(D.A.A.) Auraiya is a
usual one. In the opening paragraph, there
is narration of prosecution case and its
genesis. Not only this, learned trial Judge
has completely misread the orders of this
Court while disposing the earlier 482
Cr.P.C. application. This Court has never
directed or granted any liberty to file the
complaint as mentioned in the impugned
summoning order. In the next paragraph,
the material supplied by the complainant in
support of her case, including the alleged
criminal history of few of the applicants
and in the last paragraph of impugned
summoning order, it is dedicated to drop
the names of Smt. Shakuntl Devi and Smt.
Shanti Devi as an accused. Being ladies, no
case against them is make out under section
395 IPC. Since, the rest of the accused are
male members and few of them are having
criminal history, thus, per opinion of the
Additional
Sessions
Judge,
D.A.A.
Auraiya, they are prima facie culprit of
Section 395 IPC. Except, this, no other
reason has been attributed by the court
concerned after assigning any other good
reason for summoning the applicants as
accused.

[13] Per contra, Sri S.D. Jadaun,
learned counsel for the opposite party no.2
has filed counter affidavit sworn by none
other than Smt. Sunita Tiwari herself. In
the
counter
affidavit,
answering
respondents has seriously disputed the
contents of paragraph no.4 of the affidavit.
In paragraph no.6 of the counter affidavit,
much emphasis has been laid upon the
injury report of Anurag Krishan(Devar of
opposite party no.2) who has allegedly
sustained the fire arm injury. In this
paragraph, number of lame excuses were
extended for not lodging case crime
no.300A of 2007 within time. In paragraph
no.8 of the counter affidavit, strange
averment has been made, that case crime
no.300 of 2007 and present case are related
to same incident and the applicants have
succeeded in lodging their FIR against
husband of opposite party no.2 and other
family members on account of his political
approach. Besides this, there is not even
reference that the applicants have got long
criminal history to their credit.

[14]

Learned
counsel
for
the
applicants has drawn the attention of the
Court with regard to time and date of
incident of both the cases is 18.11.2007. In
case crime no.300 of 2007 is at 1:30 p.m.
whereas time and date of incident in case
crime no.300A of 2007 is at 2:00 p.m. in
the day. There is a difference of only half
hour between these two incidents but there
are two different places of incident. In case
crime no.300 of 2007, place of incident is
in front of shop of Hari Kishan Tiwari,
Quota dealer whereas in the instant
complaint case, place of incident is
residence of complaint village chapauli.
Secondly
in
paragraph
no.2
of
the
complaint, it has been mentioned that on
the date and time of the incident, all the
accused persons armed with rifle, gun,
tamancha, kanta, bhala barged into the
house of applicants. They started firing by
their respective fire arms and looted
Rs.9,000/- from the coffers of Mithelesh
Kumar
and
various
jewellery
and
ornaments including golden chain, finger
rings, silver ornaments etc. During this
transaction, it is allged in paragraph no.3
that since, accused persons were assaulted
6 All. Sunil Pathak & Ors. Vs. State of U.P. & Ors.
187
upon
indiscriminately,
therefore,
deceased Ram Das Pathak has sustained
gun shot injury from his own persons and
Anurag
Krishna
has
also
sustained
injuries. In this firing, informant's family
members has also sustained gun shot
injury.
In
paragraph
no.6
of
the
complaint, it has been mentioned that
investigation of case crime no.300A of
2007 was transmitted to C.B.C.I.D who
after holding indepth investigation, has
submitted
final
report
which
was
eventually
accepted
by
learned
Additional Sessions Judge/Special Judge,
D.A.A, Auraiya. After misreading orders
of this Court dated 05.07.2011, whereby
application under section 482 Cr.P.C.
preferred by opposite party no.2 was
rejected after making a tangent remark
regarding filing of the complaint case.
Opposite party no.2 has taken it as
"direction" to file complaint case and
accordingly, present complaint case was
filed.

[15] I have perused the impugned
summoning order dated 15.02.2013 as
well as the injury report of Anurag
Krishna, an alleged injured from the
side of complainant of which learned
counsel for opposite party no.2 has laid
much emphasis. This injury report is of
23.11.2007 issued/procured from one
doctor of Unnao and after observing
singular injury over his person that too
on the right side of the leg. The doctor
concerned has opined, that duration of
the injury is three days back. If it is
computed then, these injuries sustained
by alleged injured Anurag Krishna
would
come
around
20.11.2007,
whereas the incident is of 18.11.2007.
Therefore, there is no parallel between
the incident and the injuries sustained
by Anurag.

[16] It is lastly argued by learned
counsel for the applicants that in paragraph
no.2 of the complaint, it has been alleged
that assailants were armed with rifal, bhala,
kanta, tamancha but Smt. Sunita Tiwari in
her statement under section 200 Cr.P.C.,
has specified that Sunil was carrying rifal
and Pawan was having gun only. Rest of
the persons were unarmed who barged into
the house. There is marked deviaton and
shift from the prosecution story and the eye
witness account given by Ms. Sunita
Tiwari-opposite party no.2. A perusal of
the impugned summoning order dated
15.02.2013 clearly shows that names as
mentioned above i.e. Shakuntla Devi and
Shanti Devi have been dropped and it
seems that learned Additional Sessions
Judge was got extra conscious of the fact
that the applicants are having criminal
antecendents and therefore, they might
have committed this offence. Though, there
is no concrete or confidence generating
material on record to indict the applicants
in commission of present offence. Without
bothering the fact that there is no recovery
of any incriminating material or looted
article, just because that the applicants have
got criminal antecedent, has summoned the
applicants in perfunctory manner.

[17] In the summoning order, learned
court concerned has narrated the material
available on record and other facts but no
prima facie satisfaction has been recorded
to summon the applicants under section
395 IPC. In fact, it is non-speaking order
without any application of judicial mind
without recording prima facie satisfaction.
The
criminal
antecedent
of
accused/applicants do carries weigth but
solely on that ground, they cannot be
summoned unless, prima facie satisfaction
is not on record showing the complicity of
the accused in commission of the present
188 INDIAN LAW REPORTS ALLAHABAD SERIES
offence and proximity to commit the
offence. At this juncture, learned counsel
for the applicants targetted the impugned
summoning order passed by learned
Special Judge, D.A.A. Auraiya is in the
stark contrast with the consistent stand of
Hon'ble the Apex Court in this regard viz
(i) Vijay Dhanuka etc. Vs. Naijma
Mamtaz (2014) 14 SCC 638 ;(ii) Abhijit
Pawar
Vs.
Hemant
Madhukar
Nimbalkar and others (2017) 3 SCC 528
;(iii) Mehmood Ul Rehman and others
Vs. Khazir Mohd. Tunda and others
AIR 2015 SC 2195 whereby Hon'ble the
Apex Court has casted an obligation upon
learned Judge that steps taken by the
Magistrate under section 190(1)(a) of
Cr.P.C. followed by Section 204 Cr.P.C.
should reflect that Magistrate has applied
his mind to the facts and statements and he
is satisfied that there is 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
on
the
ground
for
proceeding would mean that the facts
alleged in the complaint would constitute
an offence and when considered along with
the statement recorded would prima facie
make the accused answerable before the
Court. In other words, the Magistrate is not
to act as post office as a matter of course.
There must be sufficient indication in the
order passed by the Magistrate that he is
satisfied that allegations in the complaint
constitute an offence, when it is considered
along
with
statements
recorded.
Application of mind is best demonstrated
by disclosure of mind on the satisfaction. If
there is no such indication in a case where
the Magistrate proceeds under section
190/204 Cr.P.C., the High Court must
quash such orders in exercise of powers
under section 482 Cr.P.C. Para 23 of
Mehmood Ul Rehman and others (supra) is
quoted hereinunder :-

"Having gone through the order
passed by the Magistrate, we are satisfied
that there is no indication on the
application of mind by the learned
Magistrate in taking cognizance and
issuing process to the appellants. The
contention that the application of mind has
to be inferred cannot appreciated. The
further contention that without application
of mind, the process will not be issued
cannot also be appreciated. Though no
formal or speaking or reasons orders are
required at the stage of Section 194/204
Cr.P.C., there must be sufficient indication
on the application of mind by the
Magistrate
to
the
facts
constituting
commission
of
an
offence
and
the
statements recorded under Section 200
Cr.P.C. so as to proceed against the
offender. No doubt, the High Court is right
in holding that the veracity of the
allegations is a question of evidence.
Question is not about about veracity of
allegations' but whether the respondent are
answerable at all before the criminal court.
There is no indication in that regard in the
order passed by learned Magistrate"

The court concern has not taken
into account the abovementioned glaring
discrepancies while forming the prima
facie opinion against the applicants. It
seems that this subsequent complaint case
has been lodged just to counter the cold
blooded murder of late Ram Das in which
husband of opposite party no.2 and other
named
accused
persons
are
facing
prosecution.
Learned
counsel
has
enumerated the statements of complaint
and witness and documents in support of
their
case
including
the
criminal
antecedents of the applicants.
6 All. Sunil Pathak & Ors. Vs. State of U.P. & Ors.
189

I am of the considered opinion
that the criminal history of any accused
applicants do carry weight but on this
ground alone, the applicants cannot be
summoned. Moreover, there is mark
difference and deviation in the averments
of complaint and statements of complainant
put a serious question mark to the
authencity and genesis of the criminal case
against the applicants. The injury report of
the alleged injured too seems to be a
procured document. All these factors
cumulatively shakes confidence of this
court at the threshold stage. But ignoring
all these aspects of the issue, learned
Special Judge(D.A.A.) Auraiya for the
strange reasons has hold that prima facie
case is made out against the applicants. But
to my mind, the order impugned is tangent
to the established norms set up by this
Court as well as by Hon'ble Apex Court in
this regard and deserves to be set-aside at
this stage alone.

[18] To buttress his contention,
learned counsel for the applicants has relied
upon few other judgments 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 No. 12 of
the said judgement is relevant for the
controversy in hand and is accordingly
reproduced herein under :

"(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."

[19] Learned counsel for the
applicants has also relied 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."

[20] 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 Another, reported in 2017
(99) ALL CC 104, wherein the following
observations has been made in paragraphs
8 :-

"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.
190 INDIAN LAW REPORTS ALLAHABAD SERIES

[21] 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."

[22] For the foregoing reasons spelled
out in paragraph nos.15, 16 and 17 of the
judgment, I am of the considered opinion
that the impugned summoning order is a
non-speaking order, abrupt without any
cogent
reasons
and
connecting
the
applicants in commission of the alleged
offence. The learned trial Judge has
miserably failed to assess the materials on
record in its correct prospective. He seems
overawed by criminal antecedent of few of
the applicants and jumped into conclusion
that these applicants are prima facie
involve in the commission of alleged
offence under section 395 IPC.

[23]

Accordingly,
the
present
application stands allowed and impugned
summoning order dated 15.02.2013 and all
the subsequent proceedings is hereby setaside for the reasons mentioned above.

APPLICATION U/S 482 No. -
41464 of 2013

(Smt. Mithlesh Kumari Vs.
State of U.P. and another)

[1] Smt. Mithlesh Kumari, wife of
late Krishna Babu Tiwari and mother of
Pintu@Praduman Tiwari, prime accused of
Case Crime No.300 of 2007 has filed the
present 482 Cr.P.C. application with the
following prayer :-

(a) Quashing the order dated
26.06.2013 passed by the Additional
Sessions Judge/Special Judge, D.A.A.
Auraiya in S.T. No.53 of 2012, "State Vs.
Mithlesh Kumari" arising out of case crime
no.300 of 2007 under sections 147, 148,
149, 302, 307 IPC, Police StationDibiyapur, District-Auraiya ;

(b) Stay the further proceeding of
S.T. No.53 of 2012, "State Vs. Mithlesh
Kumari" pending in the court of Additional
Sessions Judge/Special Judge, D.A.A.
Auraiya arising out of the same case crime
number.

[2] I have keenly perused the order
impugned dated 26.06.2013 passed by
Additional Sessions Judge/Special Judge,
D.A.A. Auraiya whereby learned trial
Judge after hearing the parties, has held
that S.T. No.53 of 2012 and S.T. No. 52 of
2011 are the cross-case and it is expedient
in the interest of justice that both the cases
should be heard and decided but it is not
6 All. Jiya Afzal & Anr. Vs. State of U.P. & Anr.
191
feasible or expedient to record the evidence
on
the
same
date,
and
therefore,
proceedings cannot be stayed.

[3] Aggrieved by this order, Smt.
Mithlesh Kumar(applicant) preferred the
present 482 Cr.P.C. application and this
Court on 19.11.2013 directed to list this
case along with Application U/S 482
No.12176 of 2013 and has stayed the
proceeding of S.T. no.53 of 2012 arising
out of case crime no.300 of 2007 under
sections 147, 148, 149, 302, 307 IPC,
Police
Station-Dibiyapur,
DistrictAuraiya
pending
in
the
court
of
Additional Sessions Judge/Special Judge,
D.A.A. Auraiya.

[4] After hearing the parties, I, in
the earlier part of the judgment have
allowed
in
Application
U/S
482
No.12176 of 2013 while quashing the
summoning order dated 15.02.2013 in
complaint case no.52 of 2011 and thus as
natural corollary, the entire castle goes to
shambles. The entire sessions trial arising
out of complaint case would be in nullity
and the proceeding arising out of case
crime no.300 of 2007 in S.T. No.53 of
2012 under sections 147, 148, 149, 302,
307 IPC pending in the court concerned
shall proceed unabated.

[5]

Under
the
changed
circumstances, when the impugned order
dated 15.02.2013 arising from complaint
case no.52 of 2011 initiated by Smt.
Sunita Tiwari has already been quashed,
as a natural outcome, court concerned is
absolutely free to proceed with sessions
trial arising out of case crime no.300 of
2007 and S.T. No.53 of 2012, State VS.
Mithilesh and others, under sections 147,
148, 149, 302, 307 IPC and conclude the
same as expeditiously as possible.

[6] The present application stands
rejected.
Interim
order
granted
on
19.11.2013 is hereby discharged.
----------

(2020)06ILR A191
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 15022 of 2020

Jiya Afzal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Kamal Kumar Singh

Counsel for the Opposite Parties:
A.G.A., Sri D.V. Singh, Sri S.N. Singh

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1862-Sections 419, 420, 467,
468,471 -challenge to -forged and fictitious
appointment of Anudeshak (teacher) in
Madarsa-complainant found that appointment
was against the law- regarding locus or
competence to make complaint, it is a settled
law
that
court
cannot
decline
to
take
cognizance-offence of forgery, fraud, making
fabricated document and having appointment
fraudulently in public office, requiring no
condition precedent or competence of any
person
to
initiate
criminal
proceedingMoreso,Service
Rules
1984
prohibits
appointment of any relative of any member of
Management Committee-however, father of
Anudeshak resigned in the Committee before
such
appointment
just
to
make
such
appointment legal but the same resignation
was not forwarded to Assistant Registrar,Firms,
Societies and Chits for deleting name from the
list of members of Management Committee of
Madarsa Concerned.(Para 1 to 6)
In the Instant case, the applicants are father
and son.they played fraud to the institution for