Hon'ble Rajeev Misra,J.

1. Supplementary affidavit filed by learned counsel for applicant in Court today is taken on record.

2. Heard Mr. Ashish Kumar Singh, Advocate holding brief of Mr. Virendra Singh, the learned counsel for applicant, the learned AGA for State-respondent and Mr Surendra Singh, the learned counsel representing complainant opposite party-2.

3. This application under Section 482 Cr.P.C. has been filed challenging summoning order dated 14.11.2022 passed by Judicial Magistrate, Baberu, District Banda in Complaint Case No. 107/IX/2009 (Abdul Khaliq vs. Rafi Ahmad.) under Sections 406, 420, 467, 468 IPC, Police Station Baberu, District Banda as well as entire proceedings of above mentioned complaint case now pending in the Court of Judicial Magistrate, Banda.

4. Perused the record.

5. Learned counsel for applicants invited attention of the Court to the summoning order dated 14.11.2022. He submits that order impugned in present application is wholly arbitrary and therefore liable to be set aside by this Court. Elaborating his submission, learned counsel for applicant submits that Court below has simply recorded a conclusion that on the basis of the complaint, the statement of the complainant and his witnesses, prima facie an offence under sections 406, 420, 467, 468 IPC appears to have been committed. The said conclusion recorded by the Court below is not preceded by a discussion of the allegations made in the complaint or the statement of the complainant and his witnesses as recorded under sections 200 and 202 Cr. P. C. He, therefore, submits that in absence of any finding recorded by the Court below, on the basis of the averments made in the complaint, the Neutral Citation No. - 2023:AHC:52322 statement of the complainant and that of the witnesses, no prima facie satisfaction was recorded by the Court below for summoning the applicant under section 406, 420, 467, 468 IPC. Applicants have been summoned by Court below without holding an enquiry.

No finding has been recorded by Court below in the light of observations made in paragraph 31 of the judgement of Supreme Court in Priyanka Srivastava and another Vs. State of U.P. and another, reported in 2015 (6) SCC 287.

6. The learned counsel for applicant then submits that power of attorney executed by opposite party -2 in favour of applicant was cancelled on 20.01.2016. However, application under Section 156(3) Cr.P.C., which has been treated as a complaint was filed on 05.09.2018 i.e. after expiry of a period of more than two years and seven months. As such impugned criminal proceedings have been initiated with gross delay. However, neither in application under Section 156(3) Cr.P.C. nor in the statement of complainant as recorded under Section 200 Cr.P.C., there is any explanation with regard to delay in filing application under Section 156(3) Cr.P.C.

As the delay / latches in filing aforementioned application has not been mentioned and impugned proceedings have been initiated to buttress the submission. He has relied upon paragraph-8 of judgment of Supreme Court in Raghvendra @ Dharmendra and others vs State Of U.P. And Another, AIR 2019 SC 2866. For ready reference, same is extracted hereinunder:

"8. But in impugned order there is nothing which may indicate that learned Magistrate had even considered facts of the case in hand before passing the summoning order. Impugned order clearly lacks the reflection of application of judicial discretion or mind. Nothing is there which may show that learned Magistrate, before passing of the order under challenge had considered facts of the case and evidence or law. Therefore it appears that, in fact, no judicial mind was applied before the passing of impugned order of summoning. Such order cannot be accepted as a proper legal judicial order passed after following due procedure of law."

7. In support of the aforesaid submission, reliance is placed upon the judgement of this Co