Allahabad High Court
Ram Nagina Srivastava vs State Of U.P. on 16 July, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 5378 of 2002 Applicant :- Ram Nagina Srivastava Opposite Party :- State Of U.P. Counsel for Applicant :- Madhur Prakash Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Gajendra Pratap, Advocate holding brief of Sri Madhur Prakash, learned counsel for applicant and learned A.G.A. for State of U.P.
2. Applicant has invoked 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 charge sheet dated 25.04.2002 and summoning order dated 15.05.2002 passed by Additional Chief Judicial Magistrate, IInd, Kanpur Dehat in Case No.74 of 2000, under Sections 465, 467, 468, 471, 472, 420, 120-B IPC, Police Station-Rasoolabad, District-Kanpur Dehat.
3. It is contended that when charge sheet was received by Magistrate, Kanpur Dehat, he simply passed order dated 15.05.2002 that document (charge-sheet) placed on record and let summons be issued to accused, which clearly shows non application of mind by concerned Magistrate as summons has been issued to accused without looking into the investigation report whether there was sufficient material to summon the accused or not. The order dated 15.05.2002 reads as under :
^^पत्रावली पेश हुई। अभियुक्तगण हरिशंकर शुक्ला व नन्दलाल यादव हाज़िर आये। अभि- रामनगीना श्रीवास्तव को जरिये समन दिनांक 17-6-02 के लिए तलब किया जाये । वास्ते हाज़िरी पेश हो । ** ^ "Documents placed on record. Accused Hari Shankar Shukla and Nandlal Yadav are present. Accused Ram Nagina Srivastava be summoined on 17.06.02. Put up for appearance."
(English translation by Court)
4. It clearly shows non application of mind on the part of Magistrate who issued summons to accused merely on the ground that charge sheet was submitted.
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 15.05.2002 is hereby set aside. Magistrate concerned shall now consider the charge sheet and pass fresh order in accordance with law.
Order Date : 16.07.2019/Manish Himwan