Ram Pratap Singh and Ors. vs State of U.P.

S. R. Bhargava, J.—Heard learned counsel for the revisionist and learned A.G.A. There is uncontroverted affidavit that the summoning order became known to the revisionist only in August, 1990 and immediately after that they filed petition under Section 482, Cr.P.C. which was dismissed on 1811991, on the ground that the summoning order is revisable. The time devoted to other proceeding, which was dismissed on technical ground, has to be excluded in calculating limitation. From the date of knowledge the revision is within limitation. Absence of knowledge is good ground for condoning delay. Hence I condone delay arid allow the application of the revisionists.

Then the revision itself has to be taken up for admission. After investigation, a chargesheet under Sections 409, 420, 467 and 468, I P.C. was submitted to the Magistrate against the revisionist and one other person. This chargesheet came before the Magistrate on 26th April, 1989, when the Magisstrate passed order:

Charge sheet prapt hokar adesh hue panjikrit he kagajat nakal main bheja jai tatha bad ane nakal pesh ho."

On 31st July, 1989 copies were ready then the Magistrate passed order, "Nakal shamil misil ki jai 131089 ke leye summon jari ho."

Obviously order dated 26th April, 1989 is a ministerial direction for dealing with the chargesheet and for getting copies prepared. It does not connote taking of cognizance. Cognizance is taken only when a Magistrate applies his mind and does something, in respect of the offence. Order dated 26th April, 1989 does not show that the Magistrate did anything with respect to the offence or applied his mind to the offence. In the subsequent order after receipt of copies, these was simply an order of issuing summons. Section 204, Cr.P.C. is about commencement of proceeding, before the Magistrate. It applies to all types of cases before the Magistrate whether a police case, or a complaint case or a case on other information. Under Section 204, Cr. P. C. accused can be summoned only when the Magistrate has applied his mind and found sufficient ground for proceeding further against the accused. Sufficient ground has been taken to be prima facie case, before issuing summons or sommonses or warrants under Section 204, Cr.P.C. the Magistrate mast apply his mind to find out a. prima facie case. The order dated 31st July, 1989 does not disclose at all that the Magistrate applied his mind to ascertain whether there is any prima facie case against revisionists Ram Pratap Singh, Prabhakar Singh and Ram Dulare Singh. This order also does not show that the Magistrate was satisfied that there is prima facie case against the revisionist. It is to be said that the summoning order dated 31st July, 1989 is a mechanical order and apparently it is not sustainable. Hence, at this very stage, after hearing parties counsel, I dispose of this revision finally.

Revision is allowed at this very stage. Summoning order dated 31st July, 1989 is set aside with the direction that the Magistrate concerned shall apply his mind to the evidence collected and satisfy himself if there is Prima facie case against any of the accused. If he finds prima facie case against any of the accused of the case, he shall be at liberty to pass a fresh summoning order under Section 204, Cr.P.C.

A copy of this order be issued to the counsel for the revisionist on payment of usual charges within 24 hours.

Revision allowed.