IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII Rule 32(2) (b) Description of the Case. Criminal Misc. Appl. No. 451 of 2006 Date of Decision : 22.06.2006 A.F.R. (Approved for reporting) Not approved for reporting Date:- 22.06.2006 Initial of Judge Note : Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Misc. Application No.451 of 2006 1. Phurkan S/o Asgar 2. Akhlak S/o Sher Mohammad 3. Sidhu S/o Sabber 4. Rasid S/o Sadike 5. Mobine S/o Chotiya & Yaseen All R/o Village Khedi Shikohepur P.S. Bhagwanpur District Haridwar 6. Surendra Rakesh S/o Kali Ram Rakesh R/o village Bhagwanpur P.S. Bhagwanpur District Haridwar … Applicants Versus 1. State of Uttaranchal 2. Ahmad Ali S/o Rao Mohesin Ali R/o village Khedi Shikohpur P.S. Bhagwanpur District Haridwar … Respondents Dated :- 22nd June, 2006 Mr. Vivek Shukla learned counsel for the applicants. Mr. Amit Bhatt learned AGA for the State. Hon’ble J.C.S. Rawat, J. 1) The petition under section 482 Cr.P.C. has been filed for quashing the entire proceedings and summoning order dated 27.11.2001 passed by Judicial Magistarte, Roorkee, District Haridwar in criminal case No.1356/2001 and order dated 06.05.2006 passed by the Addl. Sessions Judge, Haridwar in criminal revision No.185/2004. 2) Brief facts of the case are that the respondent no.2- Ahmad Ali filed a complaint before the Magistrate against the applicants alleging therein that the applicants fired upon him and one-Rahis on 12.08.2001. The learned Magistrate recorded the statements under section 200 & 202 Cr.P.C. and thereafter he summoned the applicants vide order dated 27.11.2001. Feeling aggrieved by the order of Magistrate, the applicant preferred a revision before the Sessions Judge and the same was dismissed vide order dated 06.05.2006. Feeling aggrieved by this, the present petition has been filed. 3) It was contended on behalf of the applicants that the whole story alleged in the complaint is improbable. It was contended that the Magistrate has not applied his judicial mind at the time of summoning the accused. It was further contended that the order passed by the Magistrate is mechanical. The Magistrate has not put any questions to the witnesses to know the veracity of the incident. The Magistrate has to consider the statements on oath recorded under sections 200, 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. The learned counsel for the applicant 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 complaint to succeed in brining charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recoding 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 above proposition of law clearly emphasizes that the Magistrate, while summoning the accused or taking the cognizance, should scrutinize the evidence and put the questions to all the witnesses as well as to the complainant. 5) In view of the above, the summoning order passed by the learned Magistrate is liable to be set aside. The Magistrate should have put the question to the complaint as well as to the witnesses to know the veracity of the incident. The Magistrate should have verified by putting questions as to whether the incident took place or not. 6) Therefore, the summoning order dated 27.11.2001 passed by Judicial Magistrate, Roorkee, District Haridwar in criminal case No.1356/2001 and order dated 06.05.2006 passed by the Addl. Sessions Judge, Haridwar in Criminal revision No.185/2004 are set-aside. The case is remitted back to the learned Magistrate to decide the same afresh in the light of the observations made above. 7) The petition is disposed of accordingly. The misc. application, if any, is also disposed of. (J. C. S. Rawat, J.) Dated 22.06.2006 LSR