Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 813 (ALL)

Krishna Agencies v. State of U. P.

2023-03-24

RAHUL CHATURVEDI

body2023
JUDGMENT : Rahul Chaturvedi, J. Heard learned counsel for the applicant as well as learned A.G.A. 2. By means of the present application, the prayer sought by the applicant is to quash the entire proceeding of Complaint case No. 32329 of 2020 under Section 420 IPC and Section 63 of Copyright Act, Police station-Harbans Mohal, District-Kanpur Nagar, pending in the Court of learned Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar as well as summoning order dated 22.11.2022 passed by learned Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar. 3. Contention raised by learned counsel for the applicant challenging the order impugned on the two grounds : (i) Since, the contesting parties are residing at two different places and thus, in all fairness, the Magistrate ought to have adhere mandatory provision of Section 202(1) of Cr.P.C. ; (ii) The order does not speak that the concerned Magistrate has applied his judicial mind while summoning the accused persons under Section 420 IPC and Section 63 of Copyright Act. In this regard, learned counsel for the applicant has drawn the attention of the Court to Section 202(1) Cr.P.C. which reads thus : Section 202(1) in The Code Of Criminal Procedure, 1973 (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding 4. Admittedly, the applicant No. 1 are situated at some Itwari Nagar, Maharashtra having pincode No. 440009 whereby opposite party No. 2 is resident of Kanpur Nagar and thus, in all fairness, it is incumbent upon the concerned Magistrate to have either himself or through the police agencies inquire about the alleged incident/offence. But, since, there is such inquiry ever carried out, therefore, the present summoning order suffers from the aforesaid legal vice. 5. Learned counsel for the applicant in order to buttress his contention has relied upon the case of Hon'ble the Apex Court in the case of Lallankumar Singh and others v. State of Maharashtra, 2022 LiveLaw (SC) 833. 6. But, since, there is such inquiry ever carried out, therefore, the present summoning order suffers from the aforesaid legal vice. 5. Learned counsel for the applicant in order to buttress his contention has relied upon the case of Hon'ble the Apex Court in the case of Lallankumar Singh and others v. State of Maharashtra, 2022 LiveLaw (SC) 833. 6. I have perused the order impugned and there is no application of judicial mind by the concerned Magistrate. There is cursory and superficial observation made by the concerned Magistrate that prima facie offence under Section 420 IPC and Section 63 of Copyright Act is made out without discussing the material on record.ýÿ 7. In the light of the judgements referred to above, it is demonstrably clear that the impugned summoning order is cryptic and does not stand the test laid down by this Court. 8. Accordingly, I have got no hesitation to quash the order dated 22.11.2022 passed by learned Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar and the matter is remanded back to the concerned Court below with the direction to re-visit and re-consider the matter again and pass a fresh well reasoned and speaking order, which must be reflective of judicial application of mind and the prima facie satisfaction of the Court concerned, keeping in view the law laid down by Hon'ble Apex Court within eight weeks from the date of production of certified copy of this order. 9. The instant 482 application is disposed of with above observations.