Allahabad High CourtJagdish Prasad Verma vs State Of U.P. & 2 Ors. on 11 November, 2020Bench: Saurabh LavaniaHIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH\n \n \n\n\n \nCourt No. - 23\n \n\n \nCase :- CRIMINAL APPEAL No. - 1054 of 2020\n \n\n \nAppellant :- Jagdish Prasad Verma\n \nRespondent :- State Of U.P. & 2 Ors.\n \nCounsel for Appellant :- Rajiva Dubey\n \nCounsel for Respondent :- G.A.\n \n\n \nHon'ble Saurabh Lavania,J.Heard Sri Rajiva Dubey, learned counsel for the appellant, Sri Pankaj Kumar Gupta, Advocate, who has filed counter affidavit along with Vakalatnama on behalf of the private respondent No. 3 and learned AGA for the State.In view of the aforesaid, there is no need to issue notice to the respondent No. 3, as required underSection 15-Aof the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Act, 1989").At the very outset, learned counsel for the appellant submitted that he does not want to press the prayer/relief pertaining to quashing of charge-sheet and setting-aside the criminal proceedings. He may be permitted to delete the same.The prayer made is allowed.Learned counsel for the appellant is permitted to delete the prayer/relief pertaining to quashing of charge-sheet and setting-aside the criminal proceedings forthwith.It is stated by the learned counsel for the appellant the Investigating Officer filed the charge-sheet before the Court below under Sections- 354, 504, 506IPCand 3(1)(da), (dha) of the Act, 1989, P.S.- Kheri, District- Lakhimpur Kheri though during the investigation, the Investigating Officer found that the charges under Sections- 323, 504, 506IPCand 3(1)(da), (dha) of the Act, 1989 are established and without application of mind, learned Court below passed the impugned order, thereby summoning the appellant under Sections- 354, 504, 506IPCand 3(1)(da), (dha) of the Act, 1989. In this regard, reliance has been placed on relevant portion of the Case Diary and certified copy of the charge-sheet. In relevant portion of the Case Diary,Section 323IPC has been mentioned andSection 354IPC has not been mentioned. In the charge-sheet, at serial No. 1 and serial No. 11(XV) also theSection 323IPC has been mentioned in place ofSection 354IPC, under which the appellant has been summoned.In the aforesaid background, learned counsel for the appellant has drawn the attention of the Court on the concluding portion of the charge-sheet as also on the summoning order, under appeal, dated 03.09.2020, whereinSection 354IPC has been mentioned.It is further stated by the learned counsel for the appellant that in fact the compromise has been entered into between the parties, which is not disputed by the counsel for the respondent No. 3.In addition, it is submitted that while passing the summoning order, the Trial Court is required to apply its mind and record prima facie satisfaction, which has not been done in the instant case rather without considering the entire material on record, in mechanical manner, the Trial Court has summoned the appellant underSection 354IPC.In this regard, reliance has been placed on judgment dated 05.02.2019, passed by the Hon'ble Apex Court in the case ofState of Gujrat v. Afroz Mohammed Hasanfattain Criminal Appeal No. 224 of 2019. The relevant paras are quoted hereunder:-"21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused underSection 204Cr.P.C. is not the same at the time of framing the charge. For issuance of summons underSection 204Cr.P.C., the expression used is "there is sufficient ground for proceeding....."; whereas for framing the charges, the expression used inSections 240and246IPC is " there is ground for presuming that the accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons underSection 204Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisionsof the Criminal Procedure Codeand in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. UnderSection 190(1)(b)Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence underSections 420,465,467,468,471,477Aand120BIPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality.Whether revision underSection 397(2)Cr.P.C. against order of issue of process is maintainable:-50. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his company Nile Trading Corporation and other Bank Statement, Call Detail Records and other materials were placed. Upon consideration of the second supplementary charge sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction.51. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside."Further, reliance has been placed on the judgment of this Court passed in Application U/S- 482 No. 882 of 2019, relevant paras of which are quoted below:-"24. From the consideration of all the authorities of the Apex Court cited on behalf of both the parties, it is clear that the minimum requirement for the Magistrate at the time of issuing summons it to record his satisfaction that sufficient material exist on record, collected by the investigating officer, forming prima facie opinion for proceeding against the accused and this opinion or satisfaction should be reflected, in short only, as per requirement of Bhushan Kumar (Supra) from the summoning order passed by the Magistrate. In the present case the following order of summoning has been passed:"17.12.2018 vkt ;g vkjksi i= lh0vks0 dk;kZy; ls izkIr gqvk iqfyl izi=ksa dk voyksdu fd;kA iqfyl izi=ksa ds voyksdu ls dsl Mk;jh esa 161 lh0vkj0ih0lh0 c;kuksa ds vk/kkj ij o oknh vf/koDrk }kjk izk0 i= e; 'k0 i= ds vk/kkj ij vfHk;qDrx.k ¼1½ _f"kiky] ¼2½ dqesjnRr iq=x.k txesUnj] ¼3½ fofiu] ¼4½ lksuw iq=x.k _f"kiky] ¼5½ iz'kkUr iq= fofiu] ¼6½ eksuw] ¼7½ gf"kZr iq=x.k dqesj nRr] ¼8½ jke/kkjh] ¼9½ jkes'oj iq=x.k tksxsUnz] ¼10½ foosd iq= jk/ks';ke] ¼11½ lksuw iq= f'ko dqekj iq= vkse izdk'k] ¼12½ vkse izdk'k dks /kkjk&307@506@336@147@148@149@452 vkbZ0ih0lh0 esa izlaKku fy;s tkus dk i;kZIr vk/kkj gSA izlaKku fy;k x;k ntZ jftLVj gksA /kkjk&309 lh0vkj0ih0lh0 dk vfHk;qDr gf"kZr dk okjUV cuk;k tk;sA udy rS;kj dh tk;sA 'ks"k vfHk;qDr dk tfj;s izkslsl tkjh gksA fnukad 1-1-19 ds fy;s tkjh gksA"25. A perusal of the order shows that the learned Magistrate has not recorded any finding that after going through the statements recorded by the investigating officer underSection 161Cr.P.C. he is satisfied that there is sufficient material against the accuseds and he is satisfied that from the allegations made in the statements sufficient ground for proceeding against them are made out.26. What the Magistrate has recorded is that from the perusal of the case diary containing statements underSection 161Cr.P.C. and from perusal of application along with affidavit filed by the counsel for the informant there is sufficient ground for taking cognizance against the 12 accuseds. In the affidavit in support of the application underSection 482Cr.P.C. the applicants have taken specific ground that one of the accused, Om Prakash, summoned by the Magistrate has died about 10 years ago and he has also been summoned. The Magistrate has not recorded the finding regarding his satisfaction that the allegations on record are such which make out sufficient ground for proceeding against the accused.27. The satisfaction of the court should not only be stated but should be apparent from its order passed for summoning the accused. The order should not be explicit in details but should be in minimum possible words showing that the material collected by the inquiry officer has been seen by the Magistrate before issuance summons against the accused. This satisfaction should be apparent from the order and should be objective. It is not required to be subjective satisfaction of the Magistrate but his objective satisfaction clear from the order.28. The reliance on the affidavits of three witnesses attached with the affidavit in support of protest petition also appears to be unwarranted in view of the judgment of this court in Pakkhando and Hari Ram (Supra). The affidavits of witnesses were extraneous to the material collected by the Investigating Officer. The order is also not very clear in this regard.29. Even in service jurisprudence when after disciplinary enquiry of alleged misconduct of a delinquent employee the inquiry officer finds that charges against him are not found to be proved, law is clear that the disciplinary authority is required to give his reasons for not agreeing with the report of the inquiry officer. Disciplinary authority cannot proceed against the delinquent employee further without recording his reasons for disagreement with the report of inquiry officer.30. The provision ofCr.P.C. are per-constitutional and the requirements ofarticle 14and21of the constitution were not there when the subject Indians were subjected to this law. Now every accused is entitled to know as to why and on what ground the report of the investigation officer in his favour has been discarded by the Magistrate. Magistrate should in the least possible words disclose reasons for his act. He cannot be permitted to violate the basic law of the land only on his subjective satisfaction which cannot be understood by the accused unless it is so stated objectively in the order of the Magistrate."Learned AGA as well as learned counsel for the respondent No. 3 could not dispute the aforesaid.After hearing learned counsel for the respective parties and considering the law laid down by the Hon'ble Apex Court as well as this Court with regard to taking cognizance by the Trial Court and passing of the summoning order as also documents placed before this Court, I am of the view that the Trial Court failed to apply its mind while passing the order, under appeal, dated 03.09.2020, as the Court below failed to take note of discrepancy pointed out by the counsel for the appellant, which is in regard to Section(s) 323 and 354IPCmentioned in the charge sheet itself as also in the Case Diary.In view of the aforesaid, the impugned summoning order dated 03.09.2020, passed by learned II Additional Sessions Judge/Special Judge, S.C./S.T. Act, Lakhimpur Kheri vide Special Sessions Trial No. 152/2020, Crime No. 465/2019, under Sections- 354, 504, 506IPCand 3(1)(da), (dha) of the Act, 1989, P.S.- Kheri, District- Lakhimpur Kheri is set-aside.The matter is remanded back to the Court below for passing fresh order in accordance with law.The appeal is finally disposed of in above terms.Order Date :- 11.11.2020\n \nArun/-