IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Misc. App. No. 1857/2008 Amendment Application No. 2237/2008 In Criminal Misc. App. No. 559 of 2007 Abdul Kalam @ Munna & Others. …… Petitioners. Versus State of Uttarkhand & Another. ..…. Respondents Mr. Anurag Bisaria, Advocate for the petitioners. Mr. B.S. Parihar, Brief Holder for respondent no. 01. Mr. Pratiroop Pandey, Advocate for respondent no. 02. Hon’ble J.C.S. Rawat, J. Mr. Anurag Bisaria, Advocate for the petitioners. Mr. B.S. Parihar, Brief Holder for respondent no. 01. Mr. Pratiroop Pandey, Advocate for respondent no. 02. 2. The petition under section 482 Cr.P.C. has been filed for quashing the summoning order dated 18.05.2007 passed by the Chief Judicial Magistrate, U.S. Nagar in criminal case No.1496/2007 (Shajad Husain Vs. Abdul Kalam & Others) under sections 147, 148, 149, 452, 392, 504, 506 & 427 IPC. 3. Background facts in a nutshell are that the daughter of petitioner no. 01 got married with the complainant/respondent no. 2 on 24.06.2004 and they have a child from this wedlock. Soon after the marriage, dowry dispute and related harassment were started among the parties. The daughter of petitioner no. 01 filed a maintenance application dated 18.01.2007 under Section 125 Cr.P.C against her husband/respondent no. 2 in the court of Bareilley. Petitioner no. 01 in order to obtain justice for his daughter also approached to the police authorities with his application dated 23.12.2006 alleging therein that the complainant/respondent no. 02 was harassing his daughter for dowry. When the police did not register the case against the complainant/respondent no. 02, petitioner no. 01 again moved an application dated 09.2.2007 under Section 156 (3) Cr.P.C before the Judicial Magistrate, Bareilley and subsequent thereto, the case was converted into a complaint case. Thereafter, in retaliation and counter blast of the legal proceedings initiated by petitioner no. 1 and his daughter against the complainant/respondent no. 2, the complainant moved a false complaint dated 11.4.2007 against the petitioners. The facts stated above have not been mentioned in the complaint. The learned Magistrate recorded the statements under section 202 Cr.P.C. and thereafter he summoned the petitioners vide order dated 18.05.2007. 4. Feeling aggrieved by the order of Magistrate, the petitioners preferred the present petition before this Court. 5. I have heard learned counsel for the parties and perused the record. The counter affidavit and rejoinder affidavit has been exchanged in this matter. The counter affidavit contains the statements of the witnesses recorded under Section 202 Cr.P.C. 6. The learned counsel for the petitioners contended that the learned Magistrate has passed the cognizance order in a routine manner or in a mechanical way; the complaint filed by respondent No.2 is only a counter- blast of those proceeding, which are initiated by the petitioners. The learned counsel for respondent no.2 refuted the contention. The Magistrate has not put any questions to the witnesses with regard to the cases pending between the parties. The Magistrate has to consider the statement on oath recorded under section 202 Cr.P.C. and other evidence filed on behalf of the complainant. It is the duty of the Magistrate to ensure as to whether the case is probable and whether the case is concocted or correct one. The learned Magistrate should have put questions to the witnesses as well as to the complainant/respondent no. 2. The learned counsel for the petitioners has referred the decision of the Hon’ble Apex Court in M/s Pepsi Food Ltd. Vs. Special Judicial Magistrate J.T. 1997(8) S.C. p/705, in which it has been held as under: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 7. The above proposition of law clearly emphasizes that the Magistrate, while summoning the accused or taking the cognizance, should scrutinize the evidence and put questions to all the witnesses as well as to the complainant. The learned Magistrate has not applied his mind while taking the cognizance and he has not put any questions neither to the witnesses nor to the complainant to verify the veracity of the incident which had taken place at Kichha. The petitioners particularly belongs to Bareilley and they came to Kichha whereas the matrimonial disputes are pending in between the daughter of petitioner no. 01 and respondent no. 02. In the background, it was just and proper for the Magistrate to make certain questions to test the veracity of the complaint. Thus, the magistrate has failed to discharge his duties as pointed out by the Hon’ble Apex Court in the above judgment. 8. Therefore, the summoning order dated 18.05.2007 passed by the Chief Judicial Magistrate, U.S. Nagar in criminal case No.1496/2007 under sections 147, 148, 149, 452, 392, 504, 506 & 427 IPC is set-aside. The case is remitted back to the learned Magistrate to decide the same expeditiously in the light of the observations made above. 9. The petition is disposed of accordingly. Misc. App. No. 1857/2008 & Amendment Application No. 2237/2008 stand disposed of accordingly. (J.C.S. Rawat, J.) 18.09.2008 V.K.