KAMLESH KUMAR GUPTA Vs. STATE OF U.P.

JUDGEMENT

(1.) The instant petition under Article 227 of the Constitution of India has been filed for setting aside the order dtd. 16/11/2019 passed by learned Chief Metropolitan Magistrate, Kanpur Nagar in Complaint Case No. 6077 of 2018 (Dinesh Kumar Gupta Vs. Kamlesh Kumar Gupta and another) under Ss. 420, 467, 468, 471, 504, 506, 120-B I.P.C. Police Station Kakadeo, District Kanpur Nagar, whereby the learned Magistrate after exercise its powers under Ss. 311 and 202 Cr.P.C. to arrive at just decision of the case has summoned the N.O.C. along with relevant documents from the concerned department as well as to set aside the Judgement and order dtd. 29/9/2021 passed by learned Sessions Judge, Kanpur Nagar (Kamlesh Kumar Gupta Vs. State of U.P. and another), whereby criminal revision filed by the petitioner against the order dtd. 16/11/2019 has been rejected.

(2.) On the other hand, learned counsel for the respondent No. 2 as well as learned A.G.A. for the State has vehemently opposed the contentions as advanced by learned counsel for the petitioner. Learned counsel for the respondent No. 2 has submitted that the learned Magistrate has committed no illegality in recalling the order dtd. 19/8/2018 vide order dtd. 16/11/2019 to arrive at a just decision of the case. He next submits that Sri Arun Kumar Assistant Director (Factories) submitted all the original documents, which were five in numbers) including the forged NOC filed by the accused person and on 7/12/2019, the respondent No. 2 filed an application requesting the Court to keep all the original documents produced by the Factory Director under the sealed cover and the learned trial Court after considering the evidence under Sec. 200 and 202 Cr.P.c. came to the conclusion that the accused persons has to be summoned and thus has rightly summoned the petitioner as well as his son Aseem Gupta under Ss. 420, 467, 468, 471, 504, 506, 120-B I.P.C. vide order dtd. 13/12/2019 against the said summoning order, the petitioner filed a Criminal Revision No. 81 of 2020 before the learned Sessions Court, which too has been dismissed. He next submits that the petitioner also preferred a Criminal Misc. (482) Application No. 9738 of 2021 against the summoning order as well as order passed by the revisional Court, before this Court which was dismissed as withdrawn vide order dtd. 22/7/2021. In the meantime, the petitioner also filed a Anticipatory Bail Application before the learned Sessions Judge which was rejected and the same is under challenge before this Court and is now pending consideration. He also submits that the order dtd. 16/11/2019 by which the learned Magistrate has summoned the relevant documents in exercise of powers under Sec. 200 Cr.P.C. is a fresh order and independent order, which cannot be said to recalling the earlier order dtd. 19/8/2018 .Learned counsel for the respondent No. 2 has placed reliance upon the Judgement of Hon'ble Apex Court reported in AIR 2019 Supreme Court 2390 in the matter of Birla Corporation Limited Vs. Adventz Investments and Holdings Limited and ors, reported in AIR 2019 Supreme Court 2390 wherein it has been held that 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. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, At the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. Extensive reference to the case law would clearly show that the allegations in the complaint and complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused.While ordering issuance of process against the accused, the Magistrate must take into consideration the averments in the complaint, statement of the complainant examined on oath and the statement of witnesses examined. since it is a process of taking a judicial notice of certain facts which constitute an offence, there has to be application of mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceeding against the accused. It is not a mechanical process. the object of an enquiry under Sec. 202 Cr.P.C. is for the Magistrate to scrutinize the material produced by the complainant to satisfy himself that the complaint is not frivolous and that there is evidence/material which forms sufficient ground for the Magistrate to proceed to issue process under Sec. 204 Cr.P.C. It is the duty of the Magistrate to elicit every fact that would establish the bona fides of the complaint and the complainant. Since number of accused are residents beyond the local limits of the trial court, as per amended provision of Sec. 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused, he shall enquire into the case or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there are sufficient grounds for proceeding against the accused. In the present case, the learned Magistrate has opted to hold such enquiry himself.

(3.) Heard Sri Manish Tiwari, learned senior counsel assisted by Sunil Kumar, learned counsel for the applicant, learned A.G.A. for the State, Sri V.P.Srivastava, learned Senior Counsel assisted by Sri Padmakar Pandey, learned counsel for respondent No. 2 and Sri Gaurav Kakkar, Advocate and perused the record.