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2025 DIGILAW 52 (ALL)

Anant Kumar Yadav v. State of U. P.

2025-01-16

ARUN KUMAR SINGH DESHWAL

body2025
JUDGMENT : Arun Kumar Singh Deshwal, J. 1. Heard Sri Dhirendra Kr. Srivastava, learned counsel for the applicant and Sri Brijesh Kr. Dwivedi, learned A.G.A. for the State. 2. The instant application has been filed seeking quashing of the summoning order dated 21.6.2024 as well as the entire proceeding of Complaint Case No. 10707 of 2024, under Section 23 of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 , P.S. Balua, District Chandauli, pending before C.J.M., Chandauli. 3. The sole contention of learned counsel for the applicant is that the summoning order ex facie is illegal, being passed by non-application of mind. It is further submitted that the Apex Court in the case of Lalankumar Singh and others vs. State of Maharashtra, 2022 SCC Online 1383 has clearly observed that summoning a person is a serious matter and while summoning a person, the court should record its satisfaction which should be reflected from the order itself. 4. Learned A.G.A. though opposed the prayer, but could not dispute that no satisfaction, regarding prima facie case, was recorded in the summoning order. 5. After hearing the submissions of learned counsel for the parties and on perusal of the record, it appears that the impugned complaint was filed on behalf of the State of U.P. through Additional Chief Medical Officer, Chandauli on the basis of inspection of the premises of diagnostic centre of the applicant on 28.5.2024 wherein several illegalities were found. 6. From the perusal of the impugned summoning order, it appears that the court below has not mentioned any satisfaction whether any prima facie case is made out against the applicant or not and also did not discus about any material which is the basis of filing this complaint. The Apex Court in paragraph No.38 of the judgement in Lalankumar Singh (supra) has clearly observed that summoning of a person is serious matter, therefore, issuance of process is not an empty formality and learned Magistrate should apply his mind whether there exists any ground for summoning the person or not. Paragraph No. 38 of the Lalankumar Singh (supra) is quoted as under:- "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. Paragraph No. 38 of the Lalankumar Singh (supra) is quoted as under:- "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 v. 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. 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. 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.” 7. In a recent judgement, in the case of Sarif Ahmed and another vs. State of U.P. and another, 2024 SCC Online SC 726 [S.L.P. (Crl.) No. 1074 of 2017 ], the Apex Court has observed that though while issuing summon, the concerned court is not required to record detailed reasoning, but it should record its satisfaction on the basis of material available on record. Paragraph No. 17 of the Sarif Ahmed (supra) is quoted as under:- "17. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issue of summons and this is not a prerequisite for deciding the validity of the summons. Nevertheless, the requirement of the Code is that the summons is issued when it appears to the Magistrate that there is sufficient ground for proceeding against the accused. Summons is issued to the person against whom the legal proceedings have commenced. Wilful disobedience is liable to be punished under Section 174 of the Penal Code, 186014. As a sequitur, keeping in mind both the language of Section 204 of the Code and the penal consequences, the Magistrate is mandated to form an opinion as to whether there exists sufficient ground for summons to be issued. While deciding whether summons is to be issued to a person, the Magistrate can take into consideration any prima facie improbabilities arising in the case. The parameters on which a summoning order can be interfered with are well settled by the decision of this court in Bhushan Kumar (supra). While deciding whether summons is to be issued to a person, the Magistrate can take into consideration any prima facie improbabilities arising in the case. The parameters on which a summoning order can be interfered with are well settled by the decision of this court in Bhushan Kumar (supra). The Magistrate in terms of Section 204 of the Code is required to exercise his judicial discretion with a degree of caution, even when he is not required to record reasons, on whether there is sufficient ground for proceeding. Proceedings initiated by a criminal court are generally not interfered with by High Courts, unless necessary to secure the ends of justice." 8. Similarly, the Apex Court in the case of Dayle De'souza vs. Union of India, (2021) 20 SCC 135 , again observed that summoning of a person should not be made in routine and mechanical manner and the court should record its satisfaction before summoning a person. Paragraph No. 36 of the Dayle De'souza (supra) is quoted as under:- "36. Equally, it is the court's duty not to issue summons in a mechanical and routine manner. If done so, the entire purpose of laying down a detailed procedure under Chapter XV of the 1973 Code gets frustrated. Under the Proviso (a) to Section 200 of the 1973 Code, there may lie an exemption from recording pre-summoning evidence when a private complaint is filed by a public servant in discharge of his official duties; however, it is the duty of the Magistrate to apply his mind to see whether on the basis of the allegations made and the evidence, a prima facie case for taking cognizance and summoning the accused is made out or not. This Court explained the reasoning behind this exemption in National Small Industries Corpn. Ltd. v. State (NCT of Delhi), (2009) 1 SCC 407 : (2009) 1 SCC (Civ) 192 : (2009) 1 SCC (Cri) 513 : (SCC p. 415, para 12) "12. The object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused. The object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused. (See Nirmaljit Singh Hoon v. State of W.B., (1973) 3 SCC 753 : 1973 SCC (Cri) 521 ) Where the complainant is a public servant or court, clause (a) of the proviso to Section 200 of the Code raises an implied statutory presumption that the complaint has been made responsibly and bona fide and not falsely or vexatiously. On account of such implied presumption, where the complainant is a public servant, the statute exempts examination of the complainant and the witnesses, before issuing process." The issue of process, resulting in summons, is a judicial process that carries with it a sanctity and a promise of legal propriety." 9. From the above legal position it is clear that though explicit reasons are not required to be recorded while passing summoning orders, but it should not be cryptic and at least satisfaction or opinion of court, regarding prima facie case on the basis of available material, must be recorded by the court below before issuing summon to a person, even if the case is filed by a public servant. 10. In the present case, no satisfaction was recorded by the court below about prima facie case against the applicant while passing summoning order dated 21.6.2024. Therefore, the impugned order is absolutely cryptic and erroneous which deserves to be quashed. 11. Accordingly, the impugned summoning order dated 21.6.2024, passed in Complaint Case No. 10707 of 2024, under Section 23 of Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, P.S. Balua, District Chandauli, is hereby set aside. 12. The court below is directed to pass a fresh order in accordance with law. 13. With the above observation, present application is allowed.