24 June 2024


High Court of Allahabad

Mohammad Ayub Rizvi and Ors. Vs. Salma Khan and Ors.




Reasons must be recorded in the summoning order, if the matter is arising out of complaint case

Instant application has been filed with the prayer to stay the entire proceedings in Complaint Case under Section 498-A, 323 of Indian Penal Code, 1860 (I.P.C) alongwith the summoning order.

A complaint was instituted by the opposite party no. 2 on 31st January, 2018, whereby, it has been stated that the applicants have tortured the opposite party no. 2 for dowry and, on the other hand, an F.I.R. was also lodged on 16th February, 2018, with same allegations.

The procedure prescribed under Section 210 of Code of Criminal Procedure, 1973 (CrPC) is very specific that, if the case is instituted otherwise than the police report and it appears to the Magistrate during the course of enquiry or trial that an investigation by the police is in progress which is the subject matter of the enquiry or trial held by him, the Magistrate shall stay proceeding of such enquiry or trial and call for a report from the police conducting such investigation. In present case, the learned trial court ignoring the provisions of Section 210 of CrPC, proceeded in the matter and has summoned the present applicants under Sections 498A, 323 of IPC and Section 4 of the Dowry Prohibition Act.

In case of Abhijit Pawar Vs. Hemant Madhukar Nimbalkar and another, it has been held that requirement of conducting enquiry or directing investigation before issuing process is not an empty formality and, therefore, the Magistrate or court is to follow the 'enquiry' other than the trial under the Code, though it is not prescribed in Section 202 of CrPC that, what would be specific mode or manner of enquiry. The Magistrate is required to apply it's mind and the application of mind by the Magistrate must be reflected in the order and the mere statement that he has gone through the complaint, documents and heard the complainant, will not be sufficient.

Now, it emerges that reasons essentially be recorded in the summoning order, if the matter is arising out of complaint case. Apparently from perusal of the impugned summoning order, it transpires that the reasons have not been recorded and, therefore, the same vitiates in the eyes of law. In view of the aforesaid submissions and discussions, this Court is of the considered opinion that the impugned summoning order dated 13th September, 2018, passed by the trial court is against the settled proposition of law.

Consequently, impugned summoning order passed by the trial court is set aside. The matter is remitted back to the trial court concerned to pass fresh order within a period of 45 days from the date of this order, in accordance with law. Application allowed.

Tags : Proceedings Summoning order Legality

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