Allahabad High Court
Pravesh Bahadur Saxena vs State And Sri K.K.Tripathi on 7 August, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- CRIMINAL REVISION No. - 1738 of 1989 Revisionist :- Pravesh Bahadur Saxena Opposite Party :- State And Sri K.K.Tripathi Counsel for Revisionist :- O.P.Singh Counsel for Opposite Party :- A.G.A. Hon'ble Sudhir Agarwal,J.
1. Heard Sri O. P. Singh, learned counsel for revisionist and learned A.G.A. for State and perused the record.
2. This criminal revision under Section 397/401 Cr.P.C., has arisen against order dated 31.05.1988 passed by Munsif Magistrate (LCC), Kasganj, District-Etah in Criminal Case No.1246 of 1988, summoning revisionist under Section 409 IPC.
3. It is contended that impugned order shows non application of mind by concerned Magistrate. The entire order reads as under :
^^अंतिम रिपोर्ट पेश हुई। अवलोकन किया गया। अभियुक्त नामजद है। अभियुक्त के विरुद्ध पर्याप्त साक्ष्य पत्रावली पर उपलब्ध है। अतः अंतिम रिपोर्ट निरस्त की जाती है और अभियुक्तों को तलब किया जाता है। पत्रावली दिनांक 29-6-88को पेश हो। दर्ज रजिस्टर होवे और अभियुक्त को समन जारी हो ।** ^ "Final report was presented. Perused. There is sufficient evidence on record against the accused, who is named. Therefore, final report is rejected and accused be summoned. Put up on 29.6.88. Register and issue summons to accused."
(English translation by Court)
4. On perusal of aforesaid order it is apparently clear that concerned Magistrate has simply rejected final report without recording any reason. In my view, this is non application of mind on the part of Magistrate who has rejected final report and issued summons to accused.
5. Learned counsel for Revisionist placed reliance on a Single Judge judgment of this Court in Dinesh Kumar Gupta Vs. State of U. P. and another, 2013 (4) ADJ 274, wherein Court considering a similar order has held that such an order cannot be sustained and there is total non application of mind on the part of Magistrate. Relevant extract of aforesaid judgment reads as under :
"A perusal of the aforesaid order it is revealed that the learned Magistrate has no where mentioned in the order that he has perused the charge-sheet and material filed in support thereof nor he disclosed the fact that the materials were sufficient to proceed with the case. The manner in which the learned Magistrate has passed the order impugned cannot be said that he had applied his mind to the facts contained in the charge-sheet and other materials filed in support thereof. Therefore, the aforesaid order cannot be described as an order "taking of cognizance of the offences" disclosed in the charge-sheet against the petitioner, hence the order dated 3.10.2012 cannot be sustained."
6. Learned counsel for Revisionist has also placed reliance on a Supreme Court judgment in Fakhruddin Ahmad vs. State of Uttraranchal, 2009 (64) AllCri C 774 and also on a judgment of this Court in Akash Garg vs. State of U. P. and others, 2011 (1) ADJ 849.
7. Learned A.G.A. also could not dispute that impugned order shows non application of mind.
8. In view thereof, this revision is allowed. Order dated 31.05.1988 is hereby set aside. Magistrate concerned shall now reconsider final report and other record and pass fresh order in accordance with law.
Order Date : 02.08.2019 Manish Himwan