Rajnesh Oswal, J
1. Present petition has been filed by the petitioners seeking quashing of the complaint titled, ‘State vs Vipan Aggarwal and others’ for
commission of offence under section 182 RPC pending before the learned City Judge, Jammu. The petitioners have also sought quashing of the
process issued in the said complaint for summoning them.
2. The brief facts necessary for disposal of the instant petition are that the petitioners had filed a complaint before the Chief Judicial Magistrate,
Jammu, which was forwarded to the Incharge Crime Branch, Jammu for investigation under law vide order dated 06.07.2010. After the receipt of the
said order along with complaint, the Crime Branch, Jammu conducted preliminary verification. During the course of verification, it was found that the
petitioners herein had lodged a false and frivolous complaint, as such, the Senior Superintendent of Police, Crime Branch filed a complaint under
section 182 RPC against the petitioners herein. The said complaint was filed before the Chief Judicial Magistrate, Jammu and the same was
subsequently assigned to the City Judge, Jammu (hereinafter to be referred as the ‘trial court’) for disposal under law and thereafter on
26.09.2012, learned trial court summoned the petitioners herein.
3. Feeling aggrieved, the petitioners have challenged the said complaint as well as the process issued against them on the grounds that it was an
obligation on the part of the Crime Branch to register FIR and they have miserably failed to perform their obligation and in a perfunctory manner has
conducted the preliminary verification against the mandate of law, therefore, the complaint is misconceived. Summoning order has been assailed by
the petitioners on the ground that no reason has been assigned by the learned trial court, while issuing process against the petitioners and the process
has been issued without even perusing the complaint by reviewing the order dated 24.08.2012.
4. Mr. Narinder Kumar Attri, learned counsel for the petitioners, in his arguments, reiterated the grounds, as narrated in the petition.
5. On the contrary, Mr. Raman Sharma, learned AAG appearing for the respondent submits that there are sufficient grounds for proceeding against
the petitioners under section 182 RPC and the complaint cannot be quashed at this stage.
6. I have heard learned counsel for the parties and perused the scanned record of the trial court.
7. This is evident from the record that the complaint was filed against the petitioners before the learned Chief Judicial Magistrate, Jammu on
24.08.2012 by the Senior Superintendent of Police, Crime Branch, Jammu and the same was assigned to the City Judge, Jammu on the same day. On
24.08.2012, after receiving of the complaint, the learned trial court directed for summoning of the Senior Superintendent of Police, Crime Branch,
Jammu for recording his statement and the same was fixed for 26.09.2012. On 26.09.2012, the learned trial court straightway issued summons against
the petitioners herein.
8. The order dated 26.09.2012 summoning the petitioners is reproduced as under:
“26.09.2012: P.O. present. Issue summons to the accused. List on 17.11.12.â€
9. A bare perusal of order dated 26.09.2012 reveals that the process has been issued in a mechanical manner and the learned trial court has not
applied its mind as to whether there are sufficient grounds for proceeding against the petitioners or not. It is evident that the trial Court has not even
perused the contents of complaint what to say of applying its mind while issuing process against the petitioners. It is settled law that while issuing
process the Magistrate must be alive to the facts of the complaint and the order summoning the accused must reflect that the Court has applied its
mind and has come to the conclusion that prima facie case for issuance of process against the accused is made out. Reliance is placed upon the
decision of the Apex Court in case titled M/s Pepsi Food Limited and another v Special Judicial Magistrate and others, AIR 1998 SC 128, in which the
Apex Court has held in paragraph 28, reads as under:
“28. 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.â€
10. The order impugned is as such contrary to the law laid down by the Apex Court.
11. As the trial court has not applied its mind with regard to the contents of the complaint and in a mechanical manner issued the process against the
petitioners, so this Court would not deal with the other contention of the petitioners that no offence u/s 182 RPC is made out as it is for the trial court
to determine whether there are sufficient grounds for proceedings against the petitioners or not. This Court leaves the said issue open for the Trial
Court to decide the same in accordance with law.
12. For all what has been said and discussed above and in view of the law laid down by the Apex Court in M/s Pepsi Food Limited (supra), order
dated 26.09.2012 having been passed in a mechanical manner is quashed and the learned trial court is directed to pass fresh order in accordance with
law.
13. Application filed by S Bhupinder Singh and S Manjeet Singh through Sh. Rahul Bharti Advocate has become infructuous with the disposal of the
present petition.
14. A copy of this order be also sent to the trial court for information.
15. Disposed of along with connected IA.
