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2015 DIGILAW 530 (UTT)

ANUP SINGH v. MAMTA

2015-11-16

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. Present petition is preferred against the order dated 17.06.2013, passed by Judicial Magistrate, Roorkee, whereby learned Magistrate was pleased to issue process against the petitioners under Section 204 of Code of Criminal Procedure for the offences punishable under Sections 323, 498A of I.P.C. and under Section 3/4 of Dowry Prohibition Act, as well as against the judgment and order dated 02.02.2015, passed by 2nd Additional Sessions Judge, Roorkee in Criminal Revision No. 479 of 2014, whereby revision arising therefrom was dismissed. 2. Undisputedly, respondent has filed Criminal Complaint under Section 200 of Cr.P.C. before the Judicial Magistrate, Roorkee for the offences punishable under Sections 323, 498A I.P.C. and under Section 3/4 of Dowry Prohibition Act. 3. I have heard Mohd. Safdar, learned counsel for the petitioners, Mr. Manish Arora, learned counsel for the respondent, and have carefully perused the record. 4. After recording the contents of the complaint, learned Magistrate has passed the order which reads as under: “In support of the complaint, complainant has examined herself under Section 200 Code of Criminal Procedure and has also examined CW1 Harpal Singh and CW2 Aman under Section 202 Code of Criminal Procedure and have produced on record copies of the applications moved by the complainant before P.S. Jhabrera, S.S.P. Haridwar as well as postal receipts whereby complaints were sent; having observed contents of the complaint and the applications moved by the complainant as well as the oral statements recorded, I find sufficient grounds to issue processes against the accused for the offences punishable under Section 323, 498A of I.P.C. and under Section 3/4 of Dowry Prohibition Act; let process be issued against the accused Naib Singh, Salekh Chand and Nagini for prima facie offences punishable under Section 323, 498A of I.P.C. and under Section 3/4 of Dowry Prohibition Act for 19.07.2013”. 5. Hon’ble Apex Court in the case of GHCL Employees Stock Option Trust Vs. India Infoline Limited (2013) 4 SCC 505 has held as under :- “Summoning of the accused in a criminal case is a serious matter. Hence the criminal law cannot be set into motion as a matter of course. 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. Hence the criminal law cannot be set into motion as a matter of course. 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. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. In the present case, in the summoning order the Magistrate has not recorded his satisfaction about a prima facie case as against Respondents 2 to 7 and the role played by them.” 6. In view of the dictum of Hon’ble Apex Court, the summoning order of the Magistrate must reflect that he has applied his mind to the facts of the case and law applicable thereto. Magistrate must record his satisfaction about the existence of prima-facie case on the basis of discussion of complaint case and evidence produced on the record. 7. It seems that learned Magistrate did not care to discuss the material available on record to form his prima-facie opinion as to why and how offence is made out. He has observed that having perused the statements and complaint, prima-facie, case is made out which cannot be said to be legal. In my opinion this is the fit case which demonstrates improper exercise of jurisdiction vested in the learned Magistrate. 8. It is settled position of law that before issuing the process under Section 204 of Code of Criminal Procedure, learned Magistrate must record his prima-facie satisfaction as to whether, prima-facie offence is made out and as to whether there are sufficient grounds to issue process against the accused, which is absolutely missing from the impugned order. Therefore, petition succeeds and is hereby allowed. Impugned summoning order dated 17.06.2013 as well as Revisional Court order dated 02.02.2015 are hereby quashed. Matter stands remanded to learned Judicial Magistrate, Roorkee under Section 398 of Code of Criminal Procedure. Learned Magistrate shall enquire into the matter afresh in accordance with law and thereafter shall be at liberty to pass appropriate order in accordance with law in the light of material available on record. 9. Complainant if so wish, shall be at liberty to produce additional material before the learned Magistrate. 10. Learned Magistrate shall enquire into the matter afresh in accordance with law and thereafter shall be at liberty to pass appropriate order in accordance with law in the light of material available on record. 9. Complainant if so wish, shall be at liberty to produce additional material before the learned Magistrate. 10. Before parting with the judgment, I would like to observe that in the impugned order, learned Presiding Officer has shown his designation as Civil Judge (Jr.Div.) and did not care to mention that he was passing the order in the capacity of Judicial Magistrate. It has come to the notice of this Court that so many Magistrates instead of writing their criminal designation, are writing civil designation even if they are dealing with the criminal cases. This practice cannot be appreciated. 11. Let copy of this order be circulated to all the Judicial Officers with the direction that Judicial Officers while exercising their civil jurisdiction shall mention their civil designation only and shall mention their criminal designation only while disposing of criminal cases, failing which, they may be dealt with in administrative side.