Lalit Kumar Tiwari and Another vs State of U.P and Another

R.K. Rastogi, J.—This is an application u/s 482 Cr.P.C. for quashing the impugned complaint dated 24.8.2006 (Annexure No. 1) filed by the complainant opposite party No. 2 against the accused applicants and the summoning order dated 11.1.2008 passed by the learned Add. Chief Judicial Magistrate, Khurja District Bulandshahr on the above complaint which is pending in his court as criminal Case No. 1599 of 2006, Rahul Sharma v. Lalit Tiwari and Ors. under Sections 323, 504, 506 and 392 I.P.C.

The facts relevant for disposal of this application u/s 482 Cr.P.C. are that on 30.6.2006 at about 4.15 P.M. the accused applicant No. 1 Lalit Kumar Tiwari, who is Senior Manager in Punjab National Bank Khurja Branch, Bulandshahr, lodged a report against the opposite party No. 2 Rahul Deo Sharma, his brother Kapil Deo Sharma and five unknown persons, on the basis of which case Crime No. 272 of 2006 was registered against them under Sections 147, 323, 504, 506, 393 and 342 I.P.C., P,.S. Khurja Nagar, District Bulandshahr. The police after investigation has submitted charge sheet against Kapil Deo Sharma and Rahul Deo Sharma in that case on 13.7.2006 under Sections 323, 504, 506, 392 I.P.C.

The complainant opposite party No. 2 Rahul Sharma ( accused in the above case) filed a complaint on 24.8.2006 in the court of Addl. Chief Judicial Magistrate, Khurja vide Complaint case No. 1599 of 2006 against Lalit Kumar Tiwari, Senior Branch Manager (informant in the above case), N.C. Bansal, Bank Loan Officer in the same Branch and Anil Kumar with these allegations that the above named accused persons Lalit Kumar Tewari and N.C. Bansal had sanctioned a loan of Rs. 50,000/- to Anil Kumar after taking illegal gratification from him by preparing fictitious documents in respect of the shop of father of the complainant. On receipt of the above information, on 30.6.2006 at about 2 P.M. when the complainant along with Kapil Deo Chief Editor Investigation News Cell and Anuj Kumar, Journalist went to the above branch of Punjab National Bank to inquire from Lalit Kumar Tiwari and N.C. Bansal about this transaction, both the above named accused persons started to misbehave with them; and not only this, both these accused persons looted their Soni camera, Mobile phone, golden chain etc. Then the complainant went to the police station to lodge a report but the police did not lodge his report. Then he gave information about this incident to the D.I.G. on telephone and he also got the injuries medically examined in the District Hospital, Bulandshahr. He also moved an application before the S.S.P. Bulandshahr on 17.7.2006 and again sent an application on 19.6.2006 by registered post but no action was taken. Then he filed this complaint.

The complainant examined himself before the Magistrate u/s 200 Cr.P.C. He also produced Kapil Deo and Yogendra Kumar Sharma as witnesses u/s 202 Cr.P.C. Learned Magistrate, after hearing the complainant, was of the view that the incident narrated in the complaint did not inspire any confidence and so he rejected the complaint u/s 203 Cr.P.C. vide order dated 12.3.07. Aggrieved with that order, the complainant filed Criminal revision No. 100 of 2007, Rahul Sharma v. State in the court of Sessions Judge, Bulanddshahr which was transferred to the court of Addl. Sessions Judge, Court No. 6, Bulandshahr. He after hearing the parties dismissed the revision and confirmed the order passed by the learned Magistrate. Aggrieved with that order the complainant Rahul Sharma filed Criminal Misc. Application N0.20345 of 2007 in this Court u/s 482 Cr.P.C. and this application was decided by Hon''ble Ravindra Singh, J vide order dated 20.8.2007 at the admission stage. He was of the view that the Magistrate has passed the order in a routine manner without giving any reason. He, therefore, allowed the application and set aside the order passed by the Magistrate as well as by the learned Addl. Sessions Judge and issued a direction to the Magistrate that he shall pass a fresh order in accordance with the provisions of law. Thereafter the learned Magistrate vide order dated 11.1.2008 passed the impugned summoning order against the applicants under Sections 323, 504, 506 and 392 I.P.C. Aggrieved with that order the accused applicants have filed this application u/s 482 Cr.P.C.

I have heard the learned Counsel for the applicants and the learned A.G.A. for the State as well as Mr. P.K. Srivastava, learned Counsel for complainant opposite party No. 2.

It appears from perusal of the impugned order passed by the learned Magistrate that he after describing the history of the case, referred to the direction issued by this Court vide order dated 20.8.07 in Criminal Misc. Application No. 20345/07 and then he has written the following sentence:

Manniya Uchch Nyayalay Allahabad Ke Aadesh Ke Anupalan Men Abhiyuktgan Ko Dhara 323, 504, 506, 392 I.P.C. Ke Antargat Talab Kiye Jane Ka Paryapt Aadhar Hai.

and then in the operative portion he passed an order summoning the accused persons.

Now, it is to be seen that there was no direction of this Court that the accused should be summoned. The order passed by this Court was that the learned Addl. Chief Judicial Magistrate khurja, District Bulandshahr shall pass a fresh order in accordance with law. If the Magistrate was of the view that a prima facie case was made out against the accused on the basis of the complaint and the statements of the complainant and the witnesses under Sections 200 and 202 Cr.PC. and that there was sufficient material to summon the accused persons, he should have first recorded a finding to that effect and then he should have passed the summoning order. But, he did not do so, and has passed the summoning order by simply writing that he was passing this order in compliance of the direction issued by the Hon''ble High Court. Such an order can not be upheld and is liable to be set aside; firstly because there was no such direction issued by this Court for summoning the accused ; and secondly, because the Magistrate should have passed the order after application of mind, and the accused could be summoned only after recording a finding that prima facie there was sufficient material to summon the accused. Without recording this finding the impugned summoning order could not be passed. As such the summoning order passed by the learned Magistrate can not be upheld and the same is liable to be set aside.

The application u/s 482 Cr. P.C. Is, therefore, allowed to this extent only that the impugned summoning order dated 11.1.2008 passed by the learned Add. Chief Judicial Magistrate, Khurja District Bulandshahr on the complaint which is pending in his court as criminal Case No. 1599 of 2006, Rahul Sharma v. Lalit Tiwari and Ors. under Sections 323, 504, 506 and 392 I.P.C. is set aside, and the matter is remanded to the court concerned to pass a fresh speaking order in the matter in the light of the observations made herein above in the body of the judgement.