IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 26 of 2006 Trilok Chand @ Triloki and others …… Petitioners Versus State of Uttarakhand and others …. Respondents Mr. Parikshit Saini, Advocate for the petitioners. Mr. S.S. Adhikari, A.G.A. for respondent Nos. 1 and 2. Mr. Pankaj Miglani, Advocate for respondent No.3. Hon’ble J.C.S. Rawat, J. Mr. Parikshit Saini, Advocate for the petitioners. Mr. S.S. Adhikari, A.G.A. for respondent Nos. 1 and 2. Mr. Pankaj Miglani, Advocate for respondent No. 3. 2. This petition u/s 482 Cr.P.C. has been filed for quashing the impugned order dated 19/11/2005 passed by the Judicial Magistrate Haridwar in Criminal Complaint Case No. 1029 of 2005, Ramesh Kumar Vs. Triloki and others whereby the applicants were summoned under Section 323, 504, 506, 452 I.P.C. 3. The learned Magistrate has taken cognizance after recording the statement of Ramesh Kumar and two other witnesses. It is also pertinent to mention here that the injuries have been recorded by the doctor and the medical certificate (Annexure-2 to the petition) reveals on the top that it was conducted on 21/10/2005 whereas at the end it is written that it was conducted on 31/10/2005. The evidence of the witnesses did not disclose the offence u/s 504 and 506 I.P.C. The Hon’ble Apex Court in the case of M/s Pepsi Food Ltd. Vs. Special Judicial Magistrate J.T. 1997(8) S.C. p/705 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. 4. The Magistrate while passing the cognizance order has erred in holding that the prima-facie case is made out u/s 504 and 506 I.P.C and even he has not gone through the medical report submitted by the complainant. Thus, the Magistrate has not applied his judicial mind while taking the cognizance. The Magistrate has not tried to take the grain from the chaff while taking the cognizance in the said case. In the facts and circumstances of the case, the Magistrate should have put certain question by himself as to clarify the medical report or he should have put certain questions to know the veracity of the incident. The statements were recorded by the Magistrate in a routine manner and he has not even tried to ascertain the true facts of the case before taking cognizance. It would be just and proper to remand the case. The learned Magistrate should record a fresh order after giving opportunity of adducing evidence to the complainant before him if the complaint desires so. He may also ascertain the veracity of the incident by putting certain questions to the witnesses who had already been examined by the complainant before the trial. 5. In view of the above, the impugned congnizance order is liable to be set aside and is hereby set aside. The matter is remitted to the learned trial court to decide it afresh in the light of the above in accordance with law. 6. The petition is disposed of accordingly. (J.C.S. Rawat, J.) 19.11.2008 Shiv