Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Summoning Order-not To Be A Speaking Order-presumption U/s 114(e) Of Evidence Act Can Be Applied.
JUDGEMENT TITLE : Anand Kumar Porwal Vs. State Of U.P.And Another On 10/27/2010 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 33856 OF 2010
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 54
CRIMINAL MISC. APPLICATION NO. 33856 OF 2010

Anand Kumar Porwal.................................APPLICANT
vs.
State Of U.P. And Another............................RESPONDENTS

Hon'ble Vinod Prasad, J.
Heard Sri Rajiv Lochan Shukla, , Learned Counsel For The

applicant And Learned AGA At A Great Length And Perused The

material On Record.

Applicant Is Being Prosecuted In Complaint Case No. 867 Of 2010, Under Section 18 (c), 27(b)(II) Of The Drugs And Cosmetics Act, 1940, In Case ,State Of U.P. Vs. Anand Kumar Porwal, Pending Before C.J.M., Auraiya, Entire Proceeding Of Which Prosecution Is Sought To Be Quashed By The Applicant Through Instant Criminal Misc. Application Along With The Summoning Order Dated 20.5.2010.
Sri Shukla, Harangued Two Submissions In Support Of The Prayers Made Here Firstly, That While Summoning The Applicant C.J.M. Has Not Passed An Order, Which May Indicate That He Had Dispensed With Inquiry Under Section 202 Cr.P.C. And Therefore It Is To Be Presumed That He Has Not Done So And Therefore Prosecution Of The Applicant Is Bad In Law Being Unsanctified By The Code Albeit, Learned Counsel Conceded To The Proposition That Since The Complaint Has Been Filed By A Public Servant, Recording Of Complainant's Statement, Under Section 200 Cr.P.C. Was Not Legally Imperative And There Was No Illegality In Summoning The Accused In Absence Of Such Recording Of Statement Under Section 200 Of The Code. It Was Further Submitted That Although Inquiry Under Section 202 Cr.P.C. Is Also Not Sine Quo Non For Summoning An Accused But The Summoning Order Must Project An Indication In That Respect That The Said Inquiry Has Been Dispensed With. The Contention Is That At Least It Should Be Culled Out For The Summoning Order That The Magistrate Has Dispensed With An Inquiry As Is Contemplated Under Section 202 Of The Code. Learned Counsel Submits That In Absence Of Such An Observation By The CJM, Summoning The Applicant Is De-hores The Prescribed Procedure And Resultantly The Summoning Order As Well As Prosecution Of The Applicant, Being Against The Procedural Requirements Of The Code Be Quashed.
Second Argument Urged By Sri Shukla Was That Only On The Basis Of "admission By The Accused", A Prosecution Cannot Be Launched Because That Admission Is Not An Admissible Evidence.
Learned AGA Refuted Both The Submissions.
I Have Considered Arguments Of Both The Sides. Dealing With The Submissions In A Seriatum, So Far As The First Contention Regarding Passing Of A Detailed Order While Summoning An Accused Is Concerned, It Is Trite Law That No Detailed Order Is Required To Be Passed At The Stage Of Summoning. No Meticulous Examination Of Facts Is Required To Be Done At That Stage. By Summoning An Accused, Only A Proceeding Is Initiated. Accused Person Is Required To Appear In The Court To Answer Implanted Charge. For Initiation Of Proceeding, A Detailed Examination Of Facts And Circumstances Of The Prosecution Case Are Not Required Nor The Scheme Of The Code Provides For Such An Exercise By The Summoning Court. Apex Court Has Interpreted Section 204 Cr.P.C And Has Negated The Contention Of Passing A Detailed Order While Summoning And Therefore Has Not Countenanced The Contention Which Has Been Urged In This Application. What Section 204 Of The Code Ordains Is That "if In The Opinion Of A Magistrate Taking Cognizance Of An Offence There Is Sufficient Ground For Proceeding," He Shall Issue Summons For The Attendance Of The Accused In A Summons Case And In Case Of A Warrant Trial He Shall Issue Warrant Or, In Case He Thinks Fit, A Summon For Such An Appearance Of The Accused. The Aforesaid Section Nowhere Mandates The Magistrate To Record Reasons For Summoning. Thus Reasons For Summoning Can Be Had From The Entire Material On Record And It Is Not A Legal Requirement Of Statute That Magistrate Must Record Reasons For Summoning A Person As Accused. Inking Of Such Reasons Has Consciously Been Eschewed By Legislature And Therefore Should Not Be Read Into Section 204 Of The Code. On This Aspect Authoritative Support Can Be Drawn From The Decision Of The Apex Court In U. P. Pollution Control Board V. M/s. Mohan Meakin Ltd.:AIR 2000 SUPREME COURT 1456 Wherein It Has Been Held By The Apex Court As Follows:-
"5. We May Point Out At The Very Outset That The Sessions Judge Was In Error For Quashing The Process At The First Round Merely On The Ground That The Chief Judicial Magistrate Had Not Passed A Speaking Order. In Fact It Was Contended Before The Sessions Judge, On Behalf Of The Board, That There Is No Legal Requirement In S. 204 Of The Code Of Criminal Procedure (For Short The 'Code') To Record Reasons For Issuing Process. But The Said Contention Was Spurned Down In The Following Words :
"My Attention Has Been Drawn To S. 204 Of The Code Of Criminal Procedure And It Has Been Argued That No Reasons For Summoning An Accused Persons Need Be Given. I Feel That Under S. 204 Aforesaid, A Magistrate Has To Form An Opinion That There Was Sufficient Ground For Proceeding And, If An Opinion Had To Be Formed Judicially, The Only Mode Of Doing So Is To Find Out Express Reasons For Coming To The Conclusions. In The Impugned Order, The Learned Magistrate Has Neither Specified Any Reasons Nor Has He Even Formed An Opinion Much Less About There Being Sufficient Ground For Not Proceeding With The Case."
6. In A Recent Decision Of The Supreme Court It Has Been Pointed Out That The Legislature Has Stressed The Need To Record Reasons In Certain Situations Such As Dismissal Of A Complaint Without Issuing Process. There Is No Such Legal Requirement Imposed On A Magistrate For Passing Detailed Order While Issuing Summons Vide Kanti Bhadra Shah V. State Of West Bengal (2000) 1 SCC 722 : (2000 AIR SCW 52 : AIR 2000 SC 522 : 2000 Cri LJ 746). The Following Passage Will Be Apposite In This Context (para 12) :
"If There Is No Legal Requirement That The Trial Court Should Write An Order Showing The Reasons For Framing A Charge, Why Should The Already Burdened Trial Courts Be Further Burdened With Such An Extra Work. The Time Has Reached To Adopt All Possible Measures To Expedite The Court Procedures And To Chalk Out Measures To Avert All Road-blocks Causing Avoidable Delays. If A Magistrate Is To Write Detailed Orders At Different Stages, The Snail-paced Progress Of Proceedings In Trial Courts Would Further Be Slowed Down. We Are Coming Across Interlocutory Orders Of Magistrates And Sessions Judges Running Into Several Pages. We Can Appreciate If Such A Detailed Order Has Been Passed For Culminating The Proceedings Before Them. But It Is Quite Unnecessary To Write Detailed Orders At Other Stages, Such As Issuing Process, Remanding The Accused To Custody, Framing Of Charges, Passing Over To Next Stages In The Trial."
(Emphasis Supplied)
Supreme Court Had Expressed Same View Earlier In The Case Of Kanti Bhadra Shah V. State Of West Bengal : AIR 2000 SC 522 Which Was Affirmed By It In The Later Decision Of U.P. Pollution Control Board ( Supra). At The Cost Of Repetition The Expression Of The Apex Court In Kanti Bhadra Shah ( Supra) Are Reproduced Herein Under, Which Are As Follows:-
"We Are Coming Across Interlocutory Orders Of Magistrates And Sessions Judges Running Into Several Pages. We Can Appreciate If Such A Detailed Order Has Been Passed For Culminating The Proceedings Before Them. But It Is Quite Unnecessary To Write Detailed Orders At Other Stages, Such As Issuing Process, Remanding The Accused To Custody, Framing Of Charges, Passing Over To Next Stages In The Trial."
(Under Line Emphasis Supplied)
In Above View, Once The Gray Area Of Interpretation, As Has Been Canvassed By Learned Counsel For The Applicant Since Has Already Been Filled Up By The Decision Of The Apex Court, That Aspect Of Legal Interpretation No Longer Remains Res-integra For This Court To Take A Contrary View As Article 142 Come In That Way.
Consequently,first Contention Submitted On Behalf Of Applicant , Though Attractive, Is, In Essence, Bereft Of Merits And Is Hereby Repelled.
Now Adverting To The Second Contention That On The Basis Of Admission, Whether A Complaint Can Be Lodged Or Not? A Perusal Of The Complaint Itself Indicates That The Complaint Has Not Been Lodged Only On The Basis Of Admission. It Has Been Filed On The Prima Facie Discovered Facts That There Was No License Issued To The Accused Applicant For The Go-down Where The Drugs Were Stored. This Fact Is Not Based Upon Admission. It Is A Fact, Which Is Writ Large On The Face Of The Record That As A Fact,repeatedly Opportunity Was Offered To The Applicant To Show And / Or Produce License Granted To Him In Respect Of Go-down But On All Those Occasions, Applicant Had Failed To Produce The Same. He Admitted This Fact In His Reply To CMO, Which Is An Additional Material Besides His Admission. In Such A View, Second Contention Of Sri Shukla Also, Does Not Appeal To Reason.
From Another Angle, If The Case Is Analyzed, It Will Be Clear That In The Present Case, Prosecution Has Been Launched By A Government Servant In Due Discharge Of His Duty. Court Has Taken Cognizance And Has Summoned The Accused. Time And Again, It Has Been Held By The Apex Court That There Is A Presumption Of Observance Of Regular Performance Of Act By Judicial Officers. The Burden Lies On That Person Who Wants To Rebut That Presumption To Establish To The Contrary, Which Is Not The Case Here. The Person, Who Wants To Rebut That Presumption Has To Come Out With Specific Pleading In That Respect. The Above Presumption Of Due Performance Emanates From Maxim "omnia Praesumuntur Rite At Solenniter Esse Acta Donec Probetur In Contrarium" Which Means That Every Performance Of Act Is Presumed To Be Rightly And Duly Performed Until The Contrary Is Shown. Further There Are Other Presumptions Prescribed In Evidence Act And One Such Presumption Is Under Section 79 Which Provides That Certified Copies Of Record Of Court Are Presumed To Be Truly Made. In This Respect Support Can Be Had From The Decision Of The Apex Court In Engineering Kamgar Union V. M/s. Electro Steels Castings Ltd.:AIR 2004 SUPREME COURT 2401, Wherein It Has Been Held As Follows:-
"39. Section 114(e) Of The Indian Evidence Act Raises A Presumption That All Official Acts Must Have Been Performed Regularly. Section 114(f) Of The Said Act Raises A Presumption That The Common Course Of Business Has Been Followed In Particular Cases. The Said Presumptions, Therefore, Would Apply In This Case Also. In Any Event, We Do Not Find Any Reason To Allow The Appellant To Raise The Said Plea Before This Court For The First Time."
Another Decision Is Zeenat V. Prince Of Wales Medical College : AIR 1971 PATNA 43 (V. 58 C 13), Wherein It Has Been Held As Under:-
"7. On The Pleadings As Also On The Submissions Made Before Us, The First Question Which Falls For Determination Is Whether The Admissions Were Provisional. While The Petitioners Are Insistent That The Admissions Were By No Means Provisional, The Respondents Have, On The Other Hand, Asserted That The Admissions Were, In Fact, Provisional. It Is Well Settled That Where An Enquiry Into Complicated Questions Of Fact Arises In A Petition Under Article 226 Of The Constitution Before The Right Of An Aggrieved Party To Obtain Relief Claimed May Be Determined, The Court May In Appropriate Cases Decline To Enter Upon That Enquiry, Which Might Involve Investigation Of Complicated Facts And Recording Of Evidence, But The Question Is Always One Of Discretion And Not Of Jurisdiction Of The Court Which May In A Proper Case Enter Upon A Decision On Questions Of Fact Raised By The Petition, Vide State Of Orissa V. Murlidhar, AIR 1963 SC 404 And State Of Orissa V. Dr. Miss Binapani Dei, AIR 1967 SC 1269. In The Cases Under Consideration No Investigation Into Complicated Facts And Recording Of Evidence Arises, Because All The Relevant Materials Are Already On The Record And A Conclusion On Their Basis May, Therefore, Be Attempted And Reached. As Already Mentioned, The Original Applications Of All The Six Candidates Admitted Against Casual Vacancies Have Been Placed On The Record On Behalf Of The Respondents. In Each One Of Them, There Is An Endorsement In The Hand Of The Principal Himself Reading "Admit Provisionally". There Is A Presumption That Every Person Whether In His Private Or Official Character Does His Duty And Unless The Contrary Is Proved, It Is Presumed That All Things Are Rightly And Regularly Done. This Presumption Applies With Greater Force To Official Acts. Further It Can Hardly Be Controverted That The Burden Of Proof Is On The Person Who Maintains That The Apparent State Of Things Is Not The Real State Of Things. In The Cases Under Consideration, The Petitioners, In My Opinion, Have Failed To Rebut The Presumption Or Discharge The Burden. Mr. Kailash Rai, Appearing For The Petitioner In C. W. J. C. No. 420/69, At One Stage Had Vaguely Suggested That The Word "provisionally" Appeared To Have Been Written Subsequent To The Admissions And Was In The Nature Of An Interpolation. That Suggestion Was Seriously Repudiated On Behalf Of The Respondents And It Was Asserted That It Was An Uniform Practice With The Principal To Endorse All Applications For Admission With The Words "Admit Provisionally", Whether In The Case Of Regular Applicants Or Applicants Against Casual Vacancies, And In That Connection They Offered And Actually Produced For Inspection By The Learned Counsel For The Petitioners Several Applications Including Many Of Those Who Were Admitted Against Regular Vacancies. No Notice Of The Aforesaid Vague Suggestion Was Possible To Be Taken, Because There Was No Averment In The Petitions To That Effect That Even After Inspection Of The Several Original Applications, Which Were Produced On Behalf Of The Respondents, No Supplementary Affidavit Was Filed On Behalf Of Any Of The Petitioners. It Follows That The Suggestion That The Word "provisionally" Was Added Subsequent To The Admissions, Must Be Taken To Have Been Abandoned."
(underline Emphasis Supplied)
Another Referable Decision In This Connection Is State Of Maharastra Versus Ramdas Srinivas Nayak : AIR 1982 SC 1249 Wherein It Has Been Observed By The Apex Court As Under:-
"4. When We Drew The Attention Of The Learned Attorney General To The Concession Made Before The High Court, Shri A. K. Sen, Who Appeared For The State Of Maharashtra Before The High Court And Led The Arguments For The Respondents There And Who Appeared For Shri Antulay Before Us Intervened And Protested That He Never Made Any Such Concession And Invited Us To Peruse The Written Submission Made By Him In The High Court. We Are Afraid That We Cannot Launch Into An Inquiry As To What Transpired In The High Court. It Is Simply Not Done. Public Policy Bars Us Judicial Decorum Restrains Us. Matters Of Judicial Record Are Unquestionable. They Are Not Open To Doubt. Judges Cannot Be Dragged Into The Arena. "Judgments Cannot Be Treated As Mere Counters In The Game Of Litigation". (Per Lord Atkinson In Somasundaran V. Subramanian, AIR 1926 PC 136). We Are Bound To Accept The Statement Of The Judges Recorded In Their Judgment, As To What Transpired In Court. We Cannot Allow The Statement Of The Judges To Be Contradicted By Statements At The Bar Or By Affidavit And Other Evidence. If The Judges Say In Their Judgment That Something Was Done, Said Or Admitted Before Them, That Has To Be The Last Word On The Subject. The Principle Is Well-settled That Statements Of Fact As To What Transpired At The Hearing, Recorded In The Judgment Of The Court, Are Conclusive Of The Facts So Stated And No One Can Contradict Such Statements By Affidavit Or Other Evidence. If A Party Thinks That The Happenings In Court Have Been Wrongly Recorded In A Judgment, It Is Incumbent Upon The Party, While The Matter Is Still, Fresh In The Minds Of The Judges, To Call The Attention Of The Very Judges Who Have Made The Record To 'the Fact That The Statement Made With Regard To His Conduct Was A Statement That Had Been Made In Error (Per Lord Buckmaster In Madhusudan V. Chandrabati, AIR 1917 PC 30). That Is The Only Way To Have The Record Corrected. If No Such Step Is Taken, The Matter Must Necessarily End There. Of Course A Party May Resile And An Appellate Court May Permit Him In Rare And Appropriate Cases To Resile From A Concession On The Ground That The Concession Was Made On A Wrong Appreciation Of The Law And Had Led To Gross Injustice; But, He May Not Call In Question The Very Fact Of Making The Concession As Recorded In The Judgment."
Such Being The Position The Second Contention Of Learned Counsel For The Applicant Is Also Devoid Of Substance And Is Hereby Rejected.
No Other Contention Was Raised By Sri Shukla In Support Of This Criminal Misc. Application U/S 482 With The Prayer To Quash The Proceedings Of Above Referred To Complaint Case In Para 1 And Hence This Application Is Dismissed As I Do Not Find Any Reason To Quash Prosecution Against The Applicant. However, Considering Facts And Circumstances Of The Case A Direction For Consideration Of Bail Prayer Of The Applicant In The Aforesaid Case On The Same Day Is Issued.

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