Allahabad High Court
Raja Ram And Others vs State Of U.P And Another on 17 September, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 1801 of 2004 Applicant :- Raja Ram And Others Opposite Party :- State Of U.P And Another Counsel for Applicant :- Dharmendra Singhal Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Dharmendra Singhal, Advocate assisted by Sri Shiv Raj Singhal, learned counsel for applicants, learned AGA for State of U.P. and perused the material available on record.
2. Applicants have invoked inherent jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash order dated 17.01.2004 and all consequential proceedings in pursuance of aforesaid order passed by Special Judge (D.A.A.), Etah in Special Sessions Trial No. 17 of 2004, Dhanvir Singh Vs. Raja Ram and Others.
3. It is contended that against final report filed by police, protest petition was filed and by cryptic order, Court below has rejected final report and held that prima facie under Sections 392/506 IPC is made out and summoned the accused. Entire order dated 17.01.2004 reads as under:-
"The case is called out. Complainant is present. Heard the Ld. Counsel for the complainant.
By perusal of Case Diary the Final Report has not been rightly submitted. Here is a prima facie case of commission of cognizable offence u/S 392/506 IPC.
Hence the FR is rejected.
Let the cognizance is taken. Accused Raja Ram, Dinesh and Guru Dayal be summoned for 4.3.04 u/S 392/506 IPC."
4. The above order clearly shows non application of mind on the part of Magistrate who issued summons to accused by passing a non-speaking order.
5. Learned counsel for applicant 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 applicant 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 application is allowed. Order dated 17.01.2004 is hereby set aside. Magistrate concerned shall now consider the protest petition filed against final report and pass fresh order in accordance with law.
Order Date :- 17.9.2019 Siddhant Sahu