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2001 DIGILAW 1136 (ALL)

RAKESH DEVI v. STATE OF UTTAR PRADESH

2001-12-06

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THIS revision has been directed against the order dated 17-9-2001 passed by A. C. J. M. 2nd, Bijnor in case No. 790 of 2001 taking cognisance of the offence and summoning the applicant under Ss. 409, 420 and 468 I. P. C. ( 2 ) IT appears that Yasspal Singh opposite party No. 2 moved an application under S. 156 (3) Cr. P. C. before the Magistrate for registration and investigation of case against the applicant, who was the Pradhan of Gaon Panchayat of Barampur and Magnesh Kumar husband of the applicant with the allegation that vide resolution dated 5-3-1998 contribution for the construction of latrine at the rate of Rs. 850. 00to general person and Rs. 725. 00 to Scheduled Caste persons was to be collected. In all 81 persons were selected as beneficiaries of the above scheme and material for construction of 100 latrine was collected and its cost was withdrawn from the panchayat, but only 98 latrines were constructed and the Pradhan and her husband embezzled cast of two latrines. A sum of Rs. 3375. 00 was collected from the persons of general persons and Rs. 42775. 00 from the Scheduled Cast persons but only a sum of Rs. 25475. 00 was shown in the cash book and the accused embezzled a sum of Rs. 50450. 00. Another sum of Rs. 20,000. 00 was embezzled by making forged receipt for return of money. A sum of Rs. 350. 00 was collected from one Meeru S/o Nanhey, but above amount was not shown in the cash book. On the basis of above application and on the order of the Magistrate a case under Ss. 409, 420,120-B, 467 and 468 I. P. C. was registered against the applicant and her husband. After investigation the police submitted charge sheet against the applicant and her husband. The learned Magistrate on receipt of charge sheet ordered registration of case and summoned the applicant and her husband vide order dated 17-9-2001. The above summoning order has been challenged in this revision. ( 3 ) HEARD Sri V. P. Srivastava learned counsel for the applicant and learned A. G. A. and perused the record. The learned Magistrate on receipt of charge sheet ordered registration of case and summoned the applicant and her husband vide order dated 17-9-2001. The above summoning order has been challenged in this revision. ( 3 ) HEARD Sri V. P. Srivastava learned counsel for the applicant and learned A. G. A. and perused the record. ( 4 ) LEARNED counsel for the applicant challenged the summoning order mainly on two grounds; (1) The learned Magistrate has passed the summoning order mechanically and without applying mind and taking into consideration of requirements of S. 190 Cr. P. C. as the charge sheet did not disclose any offence. (2) Several affidavits were filed by the applicant during investigation which were sent to the Investigating Officer, but they were not taken into consideration. ( 5 ) LEARNED counsel for the applicant contended that Criminal Courts are required to make speaking order while summoning accused persons for trial and speaking order does not mean a critical order and that the order under revision was passed mechnically without considering the material available on record. In support of his above contention he placed reliance on single Judge decision of this Court in Hazi Shafi v. State of U. P. 1999 (1) JIC 163 (All ). In the said case the learned single Judge has held that in a number of cases, this Court has required the courts functioning as Criminal Courts to make speaking order while summoning the accused persons for trial. Speaking order does not mean the critical order, touching all the aspects of the case and also the defence version, if set out at that very stage, but to examine the material made available by the Investigating Officer along with charge-sheet and satisfy himself, if the material evidence as such unchallenged is sufficient to prima facie make out the case against the accused persons. If he does so, definitely he applies his mind. ( 6 ) FURTHER reliance was placed on Apex Court decision in the case of State of Karnataka v. L. Muniswamy AIR 1977 SC 1489 . If he does so, definitely he applies his mind. ( 6 ) FURTHER reliance was placed on Apex Court decision in the case of State of Karnataka v. L. Muniswamy AIR 1977 SC 1489 . It was held that in the said case it is clear from S. 227 of the new Criminal Procedure Code that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion for reasons to be recorded that there is no sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record its reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. ( 7 ) SO for as the observations made in Hazi Shafis case (supra) it will suffice to say that the said decision has been overruled by a Division Bench of this Court in Criminal Misc. Application No. 3346 of 1999, Jag Mohan Lal v. State of U. P. decided on 19-7-2001 in view of Apex Court decision in U. P. Pollution Control Board, v. M/s Mohan Meakins Ltd. , AIR 2000 SC 1456 : (2000 All LJ 872) wherein it was held that while issuing the process under S. 204 Cr. P. C. and summoning the accused the Magistrate was not required to pass a detailed order. Therefore,the Magistrate is not required to pass a detailed order while summoning the accused. ( 8 ) THE case of State of Karnataka v. L. Muniswamys case (supra) relied on by the learned counsel for the applicant is also not applicable to the facts of present case as in the said case the accused was discharged by the Sessions Court under S. 227 Cr. P. C. by an order without recording reasons that there was no sufficient ground for proceeding against the accused. Section 227 Cr. P. C. requires reasons for so doing (dischargeing accused ). No such requirement is made under S. 204 Cr. P. C. while summoning the accused. No doubt the reasons are to be recorded while not summoning the accused and dismissing complaint u/s. 203 Cr. P. C. ( 9 ) THEREFORE the Magistrate is not required to give reasons for summoning the accused. No such requirement is made under S. 204 Cr. P. C. while summoning the accused. No doubt the reasons are to be recorded while not summoning the accused and dismissing complaint u/s. 203 Cr. P. C. ( 9 ) THEREFORE the Magistrate is not required to give reasons for summoning the accused. ( 10 ) THE next point raised by learned counsel for the applicant was that the affidavits filed by the witnesses which were part of the case diary were not considered and that the learned Magistrate has also not considered the departmental enquiry report which ended in favour of the applicant. As mentioned above the Magistrate was not required to mention the documents which he considered for satisfying himself to take cognisance. Moreover, those papers related to defence of the applicant accused which are not required to be considered at the stage of summoning. There are other stages when the contention of the applicant are to be taken into consideration but not at the stage of summoning. Therefore, on the above ground the order under revision cannot be said to be illegal or irregular. ( 11 ) THE revision, having no merit, is rejected summarily. Revision dismissed. .