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2024 DIGILAW 2518 (ALL)

Krishna Mohan Singh v. State of U. P.

2024-12-13

VIPIN CHANDRA DIXIT

body2024
JUDGMENT : Vipin Chandra Dixit, J. 1. This criminal revision under Section 397 /401 Cr.P.C . has been filed on behalf of revisionists against the summoning order dated 7.6.2022 passed by Judicial Magistrate-IIIrd, Gorakhpur in Complaint Case No.147428 of 2021 (Gulab Shankar Singh vs. Krishna Mohan Singh & others), by which revisionists were summoned under Sections 307 & 392 IPC. 2. Brief facts of the case are that the father of opposite party No.2 had executed a will deed on 9.12.2014 in favour of opposite party no.2. The brother of opposite party no.2 namely Kripa Shanker Singh had filed a suit for cancellation of will deed which was registered as Case No.1464 of 2016. The application under Order 39 Rule 1 & 2 CPC filed for interim injunction was rejected by the learned trial court vide order dated 17.1.2018. The brother of opposite party No.2 had challenged the order dated 17.1.2018 by filing Misc. Appeal No. 14 of 2018 and the lower appellate court vide order dated 26.2.2019 was pleased to set aside the order dated 17.1.2018 and directed the parties to maintain status quo in respect of suit property. 3. It is further noted that there was dispute regarding ancestral property in between opposite party no.2 and his brother Kripa Shanker Singh and several litigations are going on. Kripa Shanker Singh had lodged an FIR against opposite party No.2 and his son Udai Shanker Singh @ Udai Bhan Singh in Police Station Campierganj, District Gorakhpur which was registered as Case Crime No. 342 of 2015 under Sections 380, 427, 504, 506, 120B IPC. The Investigating Officer after due investigation has submitted charge sheet against opposite party No.2 and his son. The revisionist Nos. 1, 3 and 4 are witnesses of prosecution in the charge-sheet submitted by the Investigating Officer. The revisionist no.2 is aged about 80 years and was working at the agricultural land of revisionist no.1. 4. The opposite party No.2 had moved an application under Section 156(3) Cr.P.C . on 28.9.2021 against revisionists and it was registered as a Complaint Case No. 147428 of 2021. The statement of complainant/opposite party no.2 was recorded under Section 200 Cr.P.C . on 24.2.2022 and the statement of P.W.-1 Udai Shanker Singh was recorded under Section 202 Cr.P.C . on 15.3.2022. Statement of P.W.-2 Akhand Pratap Singh @ Mohan was recorded under Section 202 Cr.P.C . on 6.4.2022. The statement of complainant/opposite party no.2 was recorded under Section 200 Cr.P.C . on 24.2.2022 and the statement of P.W.-1 Udai Shanker Singh was recorded under Section 202 Cr.P.C . on 15.3.2022. Statement of P.W.-2 Akhand Pratap Singh @ Mohan was recorded under Section 202 Cr.P.C . on 6.4.2022. The learned Magistrate had summoned revisionists under Section 307, 392 IPC vide order dated 7.6.2022 which is impugned in the present criminal revision. 5. Heard Sri V.K. Mishra, learned counsel for revisionists, learned AGA for the State of U.P./opposite party no.1 and Sri Arvind Yadav, learned counsel for opposite party No.2, and perused the record. 6. It is submitted by learned counsel for revisionists that revisionists are innocent persons and have been falsely implicated in this case. There was serious dispute between opposite party no.2 and his brother namely, Kripa Shanker Singh with regard to ancestral property and several litigations are going on between them. The revisionists are witnesses of charge-sheet submitted in pursuance of FIR registered as Case Crime No. 342 of 2015 lodged against opposite party No.2 and his son. The present complaint has been filed by the complainant against revisionists on wrong allegations only to create pressure upon the revisionists, as the revisionists are prosecution witnesses in criminal case filed against opposite party no.2. It is further submitted that the suit filed by brother of opposite party no.2 for cancellation of will deed is still pending for consideration. In Misc. Appeal filed by brother of opposite party no.2 there was an order of status quo in respect of suit property. Kripa Shaker Singh, brother of opposite party no.2 is in possession over the said property. 7. It is further submitted that two witnesses were produced by the complainant in support of his case but there are serious contradictions in their statements and they have failed to prove the prosecution case. Even doctor was not produced in evidence. The learned Magistrate without considering the evidence adduced by the complainant and without recording any prima facie satisfaction, has passed the impugned summoning order and summoned the revisionists under Section 307, 392 IPC. The complainant had not received any external injury. From perusal of injury report dated 4.9.2021, it is apparent that there was no gunshot injury or any external injury received by the opposite party no.2 and there was only complain of pain. The complainant had not received any external injury. From perusal of injury report dated 4.9.2021, it is apparent that there was no gunshot injury or any external injury received by the opposite party no.2 and there was only complain of pain. Lastly, it is submitted that the learned trial court has failed to comply the proviso of Section 202 Cr.P.C . and without recording statement of all the witnesses has summoned the revisionists. Law has been settled by Hon'ble Apex Court as well as by this Hon'ble Court that the Magistrate must record his satisfaction as well as reason before summoning the accused persons in a complaint case but in the present case, no satisfaction has been recorded and even evidence of witnesses have not been discussed. The impugned order suffers from many irregularities and is liable to be set aside by this Hon'ble Court. 8. On the other hand, learned counsel appearing on behalf of opposite party No.2 submits that the learned Magistrate after considering the statement of complainant and his witnesses has summoned the revisionists. The order passed by the learned Magistrate is in accordance with law and no interference is warranted. The learned Magistrate after considering the evidence and materials which are available on record has found the involvement of revisionist in the crime and after prima facie satisfaction had summoned the revisionists and there is no illegality in any manner. No ground for interference is made out and criminal revision is devoid of merits and is liable to be dismissed. 9. Considered the submissions of learned counsel for the parties and perused the record. 10. It is admitted fact that there was dispute in respect of ancestral property in between opposite party no.2/complainant and his brother Kripa Shanker Singh and several litigations between them are going on. Revisionists Nos.1, 3 and 4 are witnesses of charge-sheet filed against opposite party no.2/complainant and his son. It appears that the present complaint has been filed only to create pressure upon the revisionists. As per injury report, there was no gun shot injury to the complainant and all the injuries reflect only pain in different parts of body. No external injury was found by the doctor who prepared the injury report. Doctor was not produced in evidence. The learned Magistrate without recording any prima facie satisfaction regarding truthness of incident, has summoned the revisionists. No external injury was found by the doctor who prepared the injury report. Doctor was not produced in evidence. The learned Magistrate without recording any prima facie satisfaction regarding truthness of incident, has summoned the revisionists. No evidence of complainant and his witnesses were discussed in the impugned order. 11. From the bare perusal of summoning order, it is apparent that it is a proforma order without application of judicial mind. The law has been settled by the Hon'ble Apex Court as well as this Hon'ble Court in series of cases that before passing the summoning order in a complaint case, the Magistrate must record his satisfaction that there is sufficient ground for proceeding. The Magistrate is required to apply his judicial mind as to whether there is sufficient ground for proceeding in the case or not and formation of such opinion is required to be stated in the order itself. In the present case it is apparent that no reason has been assigned and without discussing any evidence adduced by the complainant and his witnesses, the summoning order has been passed by the learned Magistrate. 12. Honble Apex Court in the case of Lalankumar Singh & others vs. State of Maharashtra, 2022 SCC OnLine SC 1383 has held that the order must contain reason and prima facie satisfaction of the Magistrate concerned. Relevant paragraph 38, 39 and 40 are reproduced hereunder:- "38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, which reads thus: "51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect." 39. A similar view has been taken by this Court in the case of Ashoke Mal Bafna (supra). 40. In the present case, leaving aside there being no reasons in support of the order of the issuance of process, as a matter of fact, it is clear from the order of the learned Single Judge of the High Court, that there was no such order passed at all. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. The learned Single Judge of the High Court, based on the record, has presumed that there was an order of issuance of process. We find that such an approach is unsustainable in law. The appeal therefore deserves to be allowed." 13. Similar view has been taken by the Hon'ble Apex Court in the case of Sachin Garg vs. State of U.P. & another, 2024 SCC OnLine SC 82. Relevant paragraph 20 is reproduced hereunder:- "20. While it is true that at the stage of issuing summons a magistrate only needs to be satisfied with a prima facie case for taking cognizance, the duty of the magistrate is also to be satisfied whether there is sufficient ground for proceeding, as has been held in the case of Jagdish Ram (supra). The same proposition of law has been laid down in the case of Pepsi Foods Ltd. and Anr. -vs- Special Judicial Magistrate and Ors. (1998) 5 SCC 749 . The learned Magistrate's order issuing summons records the background of the case in rather longish detail but reflects his satisfaction in a cryptic manner. At the stage of issue of summons, detailed reasoning as to why a Magistrate is issuing summons, however, is not necessary. But in this case, we are satisfied that the allegations made by the complainant do not give rise to the offences for which the appellant has been summoned for trial. A commercial dispute, which ought to have been resolved through the forum of Civil Court has been given criminal colour by lifting from the penal code certain words or phrases and implanting them in a criminal complaint. The learned Magistrate here failed to apply his mind in issuing summons and the High Court also failed to exercise its jurisdiction under Section 482 of the 1973 Code to prevent abuse of the power of the Criminal Court." 14. In the present case, the learned Magistrate without discussing any evidence adduced by the complainant and his witnesses and without recording any prima facie satisfaction has summoned the revisionists. The order impugned has been passed without application of judicial mind and it appears that it is a proforma order. 15. In view of above discussion, the impugned order dated 7.6.2022 is liable to be set aside. 16. The criminal revision is allowed . The impugned order dated 7.6.2022 passed by the Judicial Magistrate-IIIrd, Gorakhpur is set aside. The order impugned has been passed without application of judicial mind and it appears that it is a proforma order. 15. In view of above discussion, the impugned order dated 7.6.2022 is liable to be set aside. 16. The criminal revision is allowed . The impugned order dated 7.6.2022 passed by the Judicial Magistrate-IIIrd, Gorakhpur is set aside. The matter is remanded back to the concerned court to pass reasoned order after considering the evidence of complainant, his witnesses, injury report and other relevant documents which are available on record.