# Vijendra Singh & Ors v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 1687
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-29
- **Case number:** Application U/S 482 Cr.P.C. No. 37532 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijendra-singh-ors-v-state-of-u-p-anr-45041
- **Pages:** 6

## Headnote

A.G.A.

A. Complaint - similar complaint occurred
on different dates with little variance -
present occurrence is not subsequent
occurrence
to
previous
instituted
complaint
rather
it
is
a
previous
occurrence of another date.

B. Inherent Jurisdiction - Section 482 -
Cr.P.C. - Scope - the Trial Court and not
the High Court is expected to analytically
analyze the facts and factual matrix of
case.

Application u/s 482 rejected. (E-10)
List of cases cited: -

## Text

1688 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned orders or the proceedings under
challenge. There is no abuse of court's
process either.

21. The application is accordingly,
dismissed.
----------
(2020)1ILR 1687

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 37532 of 2019

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

Counsel for the Applicants:
Sri Sunil Kumar

Counsel for the Opposite Parties:
A.G.A.

A. Complaint - similar complaint occurred
on different dates with little variance -
present occurrence is not subsequent
occurrence
to
previous
instituted
complaint
rather
it
is
a
previous
occurrence of another date.

B. Inherent Jurisdiction - Section 482 -
Cr.P.C. - Scope - the Trial Court and not
the High Court is expected to analytically
analyze the facts and factual matrix of
case.

Application u/s 482 rejected. (E-10)
List of cases cited: -

1. M/s Pepsi Food Ltd. & anr Vs. Special
Judicial Magistrate & ors 1998 UPCr.R 118

2. Mahboob and ors Vs. State of U.P. and anr
2017 (2) JIC 320 (All) (LB)
3. Smt. Shiv Kumar and ors Vs. State of U.P.
and anr 2017 (2) JIC 589 (All) (LB)B

4. Hariram Verma and 4 Ors Vs. State of U.P.
and anr 2017 (99) ALL CC 104

5. Paul George Vs. State 2002 Cri.L.J. 996

6. S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla
(2005) 8 SCC 89

7. Anita Malhotra Vs. Apparel Export Promotion
Council (2012) 1 SCC 520

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Application, under Section
482 of Code of Criminal Procedure, 1973,
has been filed by the Applicants, Vijendra
Singh, Raghuraj Singh and Udham Singh,
against State of U.P. and Lekhraj, Son of
Ratan Singh, with a prayer for quashing of
entire criminal proceeding, including,
setting aside summoning order, dated
17.7.2019,
passed
by
the
Judicial
Magistrate, Jewar, Gautam Buddh Nagar,
in Complaint Case No. 103 of 2017
(Incorrectly
mentioned
as
Criminal
Complaint Case No.103 of 2015 in the
Application), Lekhraj vs. Vijendra and
others, for ofences, punishable, under
Sections 323, 504 and 506 of IPC, Police
Station- Jewar, Distric-Gautam Buddh
Nagar

2. Learned counsel for applicants
argued that an application, under Section
156(3) of Code of Criminal Procedure,
1973, (In short 'Cr.P.C.'), has been filed by
Mukesh against Kishan Singh, Vikas @
Bablu, Girdhari Lal Saini and Shyam Lal
Saini, for an occurrence, alleged to be of
4.1.2017, wherein, the Magistrate took
cognizance over it, treating it to be a
complaint
case,
and
examined
the
complainant, Mukesh, under Section 200
1 All. Vijendra Singh & Ors. Vs. State of U.P. & Anr.
1689
of Cr.P.C. and his witness, under Section
202 of Cr.P.C., whereupon, accused
persons, therein, Kishan, Vikas @ Bablu,
Girdhari Lal Saini, Shyam Lal Saini and
Bijendra, were summoned, for offences,
punishable, under Sections 452, 458, 508
and 120B of Indian Penal Code (In short
'IPC'). This order was challenged before
this Court, in a proceeding, under Section
482 of Cr.P.C., being Application U/S
482 No.27477 of 2018, Vijendra Singh
vs. State of U.P. and another, wherein,
summoning order was quashed, vide order,
dated 27.8.2018, relying upon principles
laid down by the Apex court as well as this
Court, mentioned in above order. Again,
with same malice, this false complaint was
filed, with a little variance of date of
occurrence
by
the
father
of
the
complainant,
i.e.,
Lekhraj,
wherein,
occurrence is said to be of 26.8.2016, at
9.30 PM, in night, and it was for causing
damage to the boundary wall of the house
of the complainant, but no summoning
was there, for offence, punishable, under
Section 427 of IPC, rather, impugned
summoning order was passed for offences,
punishable, under Section 323, 504 and
506 of IPC, and it was based on the
enquiry made by the Magisrate, wherein,
statements of complainant, Lekhraj, was
recorded, under Section 200 and his son,
under Section 202 of Cr.P.C., and on this
testimony only, impugned summoning
order has been passed, whereas, in
previous proceeding, this Court has
appreciated principles laid down, by the
Apex Court, in the case of M/S. Pepsi
Food Ltd. & another vs. Special Judicial
Magistrate & others, reported in 1998,
UPCr.R 118, that 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. But, impugned summoning order,
passed herein, is apparently, without
application of judicial mind by the
Magistrate, concerned. Hence, it was
misuse of process of court and, therefore,
this proceeding, with above prayer for
setting aside same.

3. Learned AGA, representing State
of U.P., has vehemently opposed this
Application.

4. Heard learned counsel for both
sides and gone through materials on record
as well as impugned summoning order.

5. From very perusal of the
complaint, which was filed for an
occurrence of 4.1.2017, it is apparent that
dispute regarding boundary wall, in
between Vijendra and complainant, has
been there and for this dispute, alleged
occurrence has been said to have been
committed, wherein proceedings, under
Sections 107/116 of Cr.PC, in between
two sides, were said to have been taken by
the Executive Magistrate.

6. This fact of dispute and same
being a motive for this repeated filing of
complaint is being argued by learned
counsel for applicants.

7. Present occurrence is not a
subsequent occurrence to above previous
instituted complaint, rather, it was a
previous occurrence of another date of
26.8.2016, at 9.30 PM, for which an
Application, under Section 156(3) of
Cr.P.C. was filed and it was subsequently
treated to be a complaint, by way of taking
cognizance by the Magistrate and it was
numbered as Complaint Case No. 103 of
1690 INDIAN LAW REPORTS ALLAHABAD SERIES
2017, whereupon, the Magistrate made its
enquiry in which, complainant, Lekhraj, was
examined, under Section 200 of Cr.P.C. and
his witness was examined under Section 202
of
Cr.P.C.,
thereupon,
this
impugned
summoning order was passed.

8. Contention, in this complaint, was
that on 26.8.2016, at 9.30 PM, while,
complainant, alongwith his son, Mukesh,
was at home, situated at Modalpur, on
hearing some noise, he thrown light of
Torch towards that direction and saw that
7-8 persons were demolishing the wall of
his house. They were Vijendra Singh,
Raghuraj
Singh
and
Udham
Singh,
Residents of Village Chorauli, Police
Station Jewar, District Gautam Buddh
Nagar,
accompanied
by
4-5
other
unknown persons, who can be identified
by him in identification parade, if any. On
being objected by the complainant, they
did assault, with abuse and scuffle, and
they
also
extended
threat
of
dire
consequences. On making hue and cry,
many persons rushed due to which accused
persons ran away from the spot. Earlier
also,
these
persons
committed
such
occurrence on 11/12.02.2016, for which an
application was given at Police StationJewar, on 12.2.2016. Proceeding, under
Section 107/116 of Cr.P.C., was taken by
the Police, in between. Thenafter, this
occurrence was again committed by the
accused persons on 26.8.2016, for which
this complaint.

9. Above statement of complainant is
fully intact in the statement, recorded,
under Section 200 of Cr.P.C. as well as
under Section 202 of Cr.P.C. Accordingly,
order
for
summoning,
for
offences,
punishable, under Sections 323, 504 and
506 of IPC, is substantiated by evidence,
collected by the Magistrate, in its enquiry.

10. This Court, in the case of
Mahboob and others vs. State of U.P.
and another, reported in 2017 (2) JIC,
320, (All) (LB) held as follows.

"(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 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
1 All. Vijendra Singh & Ors. Vs. State of U.P. & Anr.
1691
proceedings against the petitioners under
Section 204 Cr.PC. 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."

11. 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)B, wherein, this Court
has observed as follows:-

"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."

12. 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
has been observed:

"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.

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.

13. In the case of M/s. Pepsi Food
Ltd. & another vs. Special Judicial
Magistrate & others, 1998 UPCrR 118,
Apex Court held as follows :-

"Summoning of an accused in a
criminal case is a serious matter. Criminal
1692 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. In the case of Paul George vs.
State, 2002 Cri.L.J. 996, Apex Court, laid
down as under:-

"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."

15.

In
the
case
of
S.M.S.
Pharmaceuticals Ltd. v. Neeta Bhalla,
(2005) 8 SCC 89, the Apex Court has
laid down as under:

"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
1 All. Vijendra Singh & Ors. Vs. State of U.P. & Anr.
1693
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."

16. In the case of Anita Malhotra v.
Apparel Export Promotion Council,
(2012) 1 SCC 520, the Apex Court had
held as under:

"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."

17. In view of law laid down by the
Courts, as above, the factual aspect, which
is apparently on record, is in support of
above summoning order, this Court, in
exercise of inherent power, under Section
482 of Cr.P.C., is not expected to make
analytic analysis of factual aspect, having
been submitted by learned counsel for
applicants, that applicants are old age
persons, having no criminal antecedents,
and one of whom is also a Government
employee, and is posted as the Secretary of
Mandi Samiti, at Aligarh, but facing this
false prosecution, being malicious, is to be
seen, by the Trial court, at the time of
appreciation of evidence, to be recorded,
under Section 244 of Cr.P.C. and in further
proceeding, under Section 245 of Cr.P.C.
At this juncture, there appears to be
sufficient evidence on record.

18. In view of what has been
discussed, hereinabove, this Application,
being devoid of merit, deserves to be
dismissed
and
it
stands
dismissed
accordingly.

19. However, the Magistrate, will
consider factual aspects argued and
presented before him, at the time of
hearing of Application, moved, under
Section 245 of Cr.P.C.
----------

(2020)1ILR 1692

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 44730 of 2019

Ramesh Kumar Patel ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Archana Hans

Counsel for the Opposite Parties:
A.G.A.

A. Code of Criminal Procedure - Section
482 - Discharge application rejectedComplaint- contention of complainant
was reiterated in the statement u/s 200