Allahabad High Court
Rakesh Kumar Singh vs State Of U.P. And Another on 14 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:28381 Court No. - 30 Case :- APPLICATION U/S 482 No. - 2594 of 2018 Applicant :- Rakesh Kumar Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bashisth Muni Mishra,Amarjeet Singh Rakhra Counsel for Opposite Party :- Govt. Advocate Hon'ble Om Prakash Shukla,J.
(1) Counter affidavit filed today on behalf of the State is taken on record. Copy of the same has already been served upon the applicant's Counsel on 22.02.2024 but till date no rejoinder affidavit has been filed although several opportunity for filing the same has been granted to him.
(2) Heard Shri Amarjeet Singh Rakhra, learned Counsel for the applicant and learned Additional Government Advocate for the State.
(3) This application under Section 482 Cr.P.C. (corresponding Section 528 B.N.S.S., 2023) has been filed by the applicant, Rakesh Kumar Singh, assailing (i) proceedings of Criminal Case No. 328 of 2009 : State Vs. Rakesh Kumar Singh arising out of Case Crime No. 384 of 2008 under Sections 417, 419, 420 I.P.C. and Section 3/7 of the Essential Commodities Act, 1955, police station Kotwali Nagar, district Raebareli pending before the Court of Additional Chief Judicial Magistrate, Raebareli; (ii) charge-sheet/cognizance order dated 20.11.2008; and (iii) process/bailable warrant dated 22.09.2017.
(4) Briefly stating, an F.I.R., bearing Case Crime No. 384 of 2008, under Sections 417, 419, 420 I.P.C. and Section 3/7 of the Essential Commodities Act, 1955, at police station Kotwali Nagar, district Raebareli, was lodged against the applicant, alleging therein that on 12.03.2008, at about 03:20 p.m., inspection was conducted by the Supply Inspectors under the directions of City Magistrate, Raebareli, regarding commercial use of domestic gas in Mirchi's Restaurant situated in Super Market, Raebareli. At the time of inspection, applicant was present in the restaurant and in his presence, the Supply Inspectors found domestic LPG cylinder, bearing number 8622465 of Indane Gas, which was used commercially in the restaurant. Accordingly, a report was prepared in the presence of Manager Rakesh. However, it is alleged that Rakesh impersonated himself and mentioned the name as 'P. Agarwal' but did not mention his own name. As the use of LPG domestic gas cylinder commercially in the restaurant was in violation of the provisions of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, which is punishable under Section 3/7 of the Essential Commodities Act 1955, therefore, the District Supply Officer had sought permission from the District Magistrate, Raebareli for lodging FIR against the applicant, which was granted by the District Magistrate, Raebareli on 14.03.2008 under Section 11 of the Essential Commodities Act, 1955.
(5) Apparently, during investigation, the Investigating Officer has found that the owner of the restaurant, namely, Chandra Prakash Agarwal, died on 20.04.1992 and by concealing/cheating this fact, accused Rakesh had put the name in the recovery memo as 'C.P. Agarwal'. Thereafter, the District Magistrate, Raebareli, while exercising powers under Section 11 of the Act, 1955 and appreciating the report of the Investigating Officer, directed to institute F.I.R. against the applicant vide subsequent sanction order dated 19.11.2008. Thereafter, the Investigating Officer, after due investigation, had submitted charge-sheet against the applicant on 20.11.2008 and learned A.C.J.M., Raebareli took cognizance of the same and bailable warrant dated 22.09.2017 was issued against the applicant. In this backdrop, the applicant has filed the present application.
(6) Learned Counsel for the applicant has submitted that the continuance of the criminal case against the applicant amounts to an abuse of process of law. According to the learned Counsel, the District Magistrate had granted sanction to lodge F.I.R. against the owner of the restaurant and not against the applicant vide order dated 13.03.2008, however, by the subsequent order dated 19.11.2008, the District Magistrate, without any material available against the applicant, granted sanction to lodge F.I.R. against the applicant. He pointed out that in the recovery memo, signature of the applicant was not present and further number and description of the seized gas cylinder as is recorded in the sanction order dated 19.11.2008 is at variance with the description of the same as recorded in the Recovery Memo dated 12.03.2008. He submitted that sanction granted by the District Magistrate is without application of mind. In this regard, learned Counsel has placed reliance upon the judgment of the Apex Court rendered in the case of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal : (2014) 14 SCC 295.
(7) The next argument of the learned Counsel for the applicant is that even on a prima facie reading of the F.I.R., Sections 417 419 and 420 I.P.C. are not attracted at all against the applicant for the reasons that on being asked about the name of the persons in whose name the cylinder so seized existed, the applicant mentioned the name of Shri C.P. Agarwal, hence there is nothing fraudulent or dishonest in the said declaration and even if by any stretch of imagination, from the prosecution side, it is stated that by this act of the applicant, first informant was induced to omit his duty, then, this stand is not tenable as the charge-sheet has been filed against the applicant alone and not the owner of the restaurant. He submitted that while passing the impugned order of cognizance dated 28.02.2009, the trial court did not consider as to whether or not from the plain reading of the contents of the charge-sheet, cognizance could have been taken of the offences under Sections 417, 419, 420 I.P.C. and Section 3/7 of the Act, 1955. In this regard, learned Counsel has placed reliance upon judgment of the Apex Court in Rakha Jain Vs. State of Karnataka : (2022) 18 SCC 174 and Archana Rana Vs. State of U.P. : (2021) 3 SCC 751.
(8) Learned AGA, on the other hand, has opposed the contentions of the learned Counsel for the applicant and has submitted that the Investigating Officer, after due investigation, found that at the time of inspection, the applicant was present and in his presence being Manager of the restaurant, domestic LPG gas cylinder was recovered under the recovery memo, wherein the applicant himself had put the name of owner of the restaurant even knowing the fact that by that time, owner of the restaurant was not alive. Moreso, domestic cylinder used under the Managership of the applicant in the restaurant is itself sufficient evidence to prosecute him under Section 3/7 of the Essential Commodities Act, 1955. The District Magistrate, after appreciating all these facts, has rightly granted sanction to prosecute the applicant. The learned Magistrate has also rightly taken cognizance of the case and has rightly passed the impugned order of bailable warrant as the applicant was not present in Court. Thus, present application is liable to be dismissed.
(9) Having regard to the submissions of the learned Counsel for the parties and going through the record, this Court finds that Annexure CA-3 of the counter affidavit, which is a statement of Ajay Kumar son of late Chandra Prakash Agarwal, clearly shows that the applicant was engaged to look after and run the restaurant and he was only the person to look after all the affairs of the restaurant. This deposition of Ajay Kumar further shows that the cylinder, which was recovered, was in the name of his father and this cylinder was in the possession of Rakesh, which was recovered. In the counter affidavit, death certificate of owner of the restaurant, namely, Chandra Prakash Agarwal, was also annexed as Annexure no.CA-4, wherein date of death was mentioned as 20.04.1992. The F.I.R. reveals that inspection of the restaurant was conducted on 12.03.2008. It is alleged in the FIR that at the time of inspection, applicant was present and in his presence, the domestic gas cylinder was found to be used for commercial purposes. The applicant himself has put the name in the recovery memo as 'C.P. Agarwal'.
(10) A bare reading of the order dated 19.11.2008, by which the District Magistrate has granted sanction to prosecute the applicant, reveals that the District Magistrate has considered the facts that earlier pursuant to the direction of the District Magistrate dated 18.03.2008, F.I.R. was registered against the applicant and the owner of the restaurant, namely, C.P. Agarwal, and it was investigated. During investigation, involvement of C.P. Agarwal in the offence was found to be incorrect as he was not alive at that time. The witnesses had supported the involvement of the accused in the offence. After considering these facts, the District Magistrate had again granted sanction to prosecute the applicant under Section 3/7 of the Essential Commodities Act. Thus, this Court is of the view that the sanction order passed by the District Magistrate is in accordance with law.
(11) Needless to mention herein that the applicant has not assailed the sanction order but he only assails the proceedings of the criminal Case No. 328 of 2009 : State Vs. Rakesh Kumar Singh arising out of Case Crime No. 384 of 2008 under Sections 417, 419, 420 I.P.C. and Section 3/7 of the Essential Commodities Act, 1955, police station Kotwali Nagar, district Raebareli pending before the Court of Additional Chief Judicial Magistrate, Raebareli; charge-sheet/cognizance order dated 20.11.2008; and process/bailable warrant dated 22.09.2017.
(12) From the perusal of material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Hon'ble Supreme Court in cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be, before the trial Court and he is free to take all the submissions in the said discharge application before the trial Court.
(13) Further, in the present case, this Court finds that the learned trial Court has taken cognizance while recording a finding that from a perusal of the case diary and case record, a prima facie case was made out against the accused/petitioner. In Bhushan Kumar & Anr. vs State (NCT of Delhi) & Anr. : (2012) 5 SCC 424, the Apex Court held that an order of the Magistrate taking cognizance cannot be faulted only because it was not a reasoned order; relevant paragraph being as under :-
"14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.
15. In Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722 : 2000 SCC (Cri) 303] the following passage will be apposite in this context: (SCC p. 726, para 12) "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 roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all 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)
16. In Nagawwa v. Veeranna Shivalingappa Konjalgi [(1976) 3 SCC 736 : 1976 SCC (Cri) 507] this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that: (SCC p. 741, para 5) "5. ... Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused."
17. In Chief Controller of Imports & Exports v. Roshanlal Agarwal [(2003) 4 SCC 139 : 2003 SCC (Cri) 788] this Court, in para 9, held as under: (SCC pp. 145-46) "9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. [(2000) 3 SCC 745] and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722 : 2000 SCC (Cri) 303] it was held as follows: (U.P. Pollution case [(2000) 3 SCC 745] , SCC p. 749, para 6) '6. 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. The process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.'"
18. In U.P. Pollution Control Board v. Bhupendra Kumar Modi [(2009) 2 SCC 147 : (2009) 1 SCC (Cri) 679] this Court, in para 23, held as under: (SCC p. 154) "23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."
19. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order."
(emphasis supplied) (14) The view in Bhushan Kumar (Supra) was reiterated in various judgments of the Hon'ble Apex Court including in Rakhi Mishra Vs. State of Bihar and others : (2017) 16 SCC 772. The Apex Court in Rakhi Mishra (Supra), while restating the settled proposition of law enunciated in Sonu Gupta Vs. Deepak Gupta : (2015) 3 SCC 424, observed as under :-
"4. We have heard the learned counsel appearing for the parties. We are of the considered opinion that the High Court erred in allowing the application filed by Respondents 2, 4, 5, 6, 7, 8, 9 and 10 and quashing the criminal proceedings against them. A perusal of the FIR would clearly show that the appellant alleged cruelty against Respondents 2, 4, 5, 6, 7, 8, 9 and 10. This Court in Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] held as follows: (SCC p. 429, para 8) "8. ... At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence ... to find out whether a prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not."
5. The order passed by the trial court taking cognizance against R-2 and R-4 to R-9 is in conformity with the law laid down in the above judgment. It is settled law that the power under Section 482 CrPC is exercised by the High Court only in exceptional circumstances only when a prima facie case is not made out against the accused. The test applied by this Court for interference at the initial stage of a prosecution is whether the uncontroverted allegations prima facie establish a case."
(emphasis supplied) (15) In view of the aforesaid, the application under Section 482 Cr.P.C. has no force and the same is, accordingly, dismissed.
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(Om Prakash Shukla, J.) Order Date :- 14.5.2025 Arnima/Ajit/-