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2025 DIGILAW 1330 (ALL)

Mubarak v. State of U. P.

2025-11-17

JAI PRAKASH TIWARI

body2025
JUDGMENT : JAI PRAKASH TIWARI, J. 1. Heard Sri Abhitab Kumar Tiwari, learned counsel for the applicants, Sri Santosh Singh, learned counsel for opposite party no.2, learned AGA for the State and perused the record. 2. The present 482 Cr.P.C. application has been filed to quash the orders dated 19.02.2013 passed by Judicial Magistrate, on the complaint filed by the opposite party no.2 and order date 30.08.2017 passed by he Additional Session Judge, Court No.14 Meerut in Revision No.66 of 2014, as well as entire proceedings of Complaint Case No.236 of 2012 (Rashid Vs. Saleem and others) under Sections-420, 467, 468, 471, 504, 506 of IPC Police Station Saroorpur District Meerut, pending in the court of Judicial Magistrate, Sardhana, District Meerut. 3. It is argued by learned counsel for the applicants that Late Rafik (father of applicant no.2 to 4 and husband of applicant no.5) was owner of land in dispute. The agriculture Patta was allotted to him in the year 1975 over the land and during consolidation proceedings, he was declared owner with transferable right vide order dated 21.07.2005 passed by the Settlement Officer Consolidation Meerut. On 26.09.2006 the father of applicants executed the sale deed in favour of complainant. It is further argued that at that time the complainant had not moved any application for mutation and after about six years he had filed the complaint against the applicants. On his complaint, the learned court concerned has summoned the applicants. It is further argued that applicant nos. 1 to 5 have no concerned with the sale deed as neither they are executor nor beneficiary. It is next argued that the applicant nos. 6 & 7 are only marginal witnesses of sale deed. It is a purely civil dispute which has been given criminal colour. It is further argued that in absence of any finding recorded by the court concerned, on the basis of the averments made in the complaint, the statements recorded under Sections 200 & 202 of Cr.P.C. no prima facie satisfaction was recorded by the court concerned for summoning the applicants under section 420, 504, 506 IPC. 4. On the other hand, learned AGA and learned counsel for opposite party no.2 have opposed the aforesaid argument with the contention that it is clearly mentioned in the complaint that possession over the property has not been given till date. 5. 4. On the other hand, learned AGA and learned counsel for opposite party no.2 have opposed the aforesaid argument with the contention that it is clearly mentioned in the complaint that possession over the property has not been given till date. 5. It reveals from the perusal of the record that initially an application under Section 156(3) Cr.P.C. has been filed by the complainant (herein opposite party no.2), the same has been treated as complaint case and thereafter the statement of the complainant and the witnesses have been recorded under Section 200 and 202 of Cr.P.C. The learned Magistrate vide order dated 19.02.2013 summoned the present applicants under Sections-420, 504 & 506 IPC It is also evident from the record that the criminal revision filed against the impugned summoning order before the Additional Session Judge Court No.14, Meerut but the same has been rejected due to non-presence of the applicants/revisionists. 6. It transpires from the record that the sale deed, which is the base of the complaint, was executed by the father of the applicants no.1 to 3 and husband of applicant no.4. There father was the sole vendor of the sale deed. It is also evident from the record that at the time of execution of sale deed, the father of applicants no.2 to 4 (Rafik) was Bhumidhar with transferable rights by the order of Consolidation Officer, Sardhana dated 21.07.2005 passed in Suit No.610 of but later on his name was expunged on some complaint after his death. Thereafter, the complaint against the present applicants has been filed by the opposite party no.2. 7. As per the submission of counsel for the applicants, late Rafik (father of applicants no.2 to 4 and husband of applicant no.5) was the actual owner of the disputed land through Patta and also declared the owner with transferable rights vide order dated 21.07.2005 of Consolidation Officer, Sardhana. The sale deed was executed in the year 2006 and later on he died. On the basis of complaint, the name of Rafik was struck off from the revenue record and after the lapse of long period, the present complainant (opposite party no.2) has been filed complaint against the present applicants. 8. In the judgement of this Court in the case of Mahboob and others vs. State of U.P. and another , 2017 (2) JIC 320 (All) (LB) Paragraph Nos. 8. In the judgement of this Court in the case of Mahboob and others vs. State of U.P. and another , 2017 (2) JIC 320 (All) (LB) Paragraph Nos. 10, 11 and 12 of the said judgement are relevant for the controversy in hand and are accordingly reproduced herein under:- "(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 proceedings against the petitioners under Section 204 CrPC. 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. 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." 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, 2017 (2) JIC 589 (All) (LB). Paragraph No. 10 of the aforesaid judgement is relevant for the controversy in hand. The same is as under:- "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." 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 Another, reported in 2017 (99) ALL CC 104, wherein the following observations have been made in paragraphs 7 to 16: "7. 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. 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. 8. 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. 9. In ruling M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UP CrR 118 Hon'ble Supreme Court held :- "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. 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." 10. In Paul George vs. State, 2002 Cri. 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." 10. In Paul George vs. State, 2002 Cri. L.J. 996 Hon'ble Supreme Court held :- "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." 11. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 the Apex Court had held : "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. 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 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." 12. It is settled principle that while summoning an accused, the court has to see prima facie evidence. The ''prima facie evidence' means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The enquiry u/s 202 CrPC is limited only to ascertain of truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not. 13. As held by the Courts as above, the passing of order of summoning any person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind. 14. In light of this legal position I have gone through the impugned order. A perusal of this order indicates that neither any discussion of evidence was made by learned, nor was it considered as to which accused had allegedly committed what overt act. The five accused persons of complaint were summoned for offences mentioned in it. 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 the facts and circumstances of the case and the evidence or the law. The five accused persons of complaint were summoned for offences mentioned in it. 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 the facts and circumstances of the case and the evidence or the 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. Therefore it is liable to be quashed. 15. In Anita Malhotra v. Apparel Export Promotion Council, (2012) 1 SCC 520 the Apex Court had hld as under: "20. 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." 9. In light of this legal position, I have gone through the impugned order. A perusal of this order indicates that learned Magistrate had written nothing, concerning the facts of the case. The accused person of complaint were summoned for offences mentioned in that application. No reason was mentioned in the impugned order, and the same clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing the order which is under challenged had considered facts of the case and evidence or law. Therefore, it appears that, in fact, no judicial mind was applied before passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. 10. Therefore, it appears that, in fact, no judicial mind was applied before passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law. 10. Considering the averment of present case as well as affidavit supporting it, the incorrect and unbelievable complaint case, false implication of the applicants by informant in his complaint and considering the vagueness of information mentioned in complaint, and in light of verdict mentioned in aforesaid rulings of Hon'ble Apex Court, this appears to be a case in which applicants should succeed and the impugned orders as are liable to be set-aside. 11. Accordingly, the present application succeeds and is allowed. The impugned summoning order dated 19.02.2013 and order dated 30.08.2017 passed in Revision No.66 of 2014 are hereby set-aside and the matter requires reconsideration. 12. The present application is, accordingly, succeeds. The case is remanded back to the concerned Learned Magistrate with direction to pass afresh reasoned and speaking order, in accordance with law.