Allahabad High Court
Ram Kumar Singh & Ors. vs State Of U.P. & Anr. on 4 November, 2020
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 29 Case :- U/S 482/378/407 No. - 5399 of 2016 Applicant :- Ram Kumar Singh & Ors. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Vinod Kumar Singh Counsel for Opposite Party :- Govt. Advocate,Pramod Kumar Hon'ble Alok Mathur,J.
1. Heard learned counsel for the applicants and learned Additional Government Advocate for the State.
2. With the consent of learned counsel for the parties, the application is being finally disposed of.
3. The present application under Section 482 of Cr.P.C. has been filed for quashing the charge sheet No.195 of 2015 dated 25.10.2015 in Case Crime No.248 of 2015 under Sections 419, 420, 467, 468, 471 of IPC relating to police station - Kotwali Mankapur, District Gonda as well as summoning order dated 29.1.2016 issued by Additional Chief Judicial Magistrate, Gonda.
4. Learned counsel for the applicants, after arguing at some length, confines his arguments within a narrow compass and has submitted that the impugned summoning order has been issued by filling in the blanks. A copy of the charge sheet and the summoning order dated 29.1.2016 is Annexures-1 & 2 to the application.
5. Placing reliance on the judgment of this Court in the case of Ankit vs. State of U.P. and others reported in JIC 2010(1) 432 which has been recently followed by this Court in the case of Avdhesh vs. State of U.P. passed in Application U/S 482 No.13583 of 2019 decided on 19.4.2019, learned counsel for the applicants contends that such a proforma order could not have been passed by filling up blanks of a computer typed order as the same has to necessarily involve application of mind by the Magistrate concerned.
6. In this regard, strong reliance has also been placed on paragraphs 12, 16, 19 and 20 of the judgment in the case of Avdhesh (supra) for quashing of the impugned summoning order.
7. On the other hand, though the learned A.G.A. has submitted that the charge sheet and the impugned summoning order cannot be said to be a cyclostyle order yet he fairly submits that a bare perusal of the impugned order indicates that blanks have been filled in of a computer typed order. He also submits that either the order should be completely handwritten or completely typed as per the directions issued by this Court in the case of Aquil Ahmad and others vs. State of U.P. and another in Application U/s 482 Cr.P.C. No.4337 of 2015 decided on 8.9.2015.
8. Having heard the learned counsel for the parties and having perused the record what is apparent is that the impugned order dated 29.1.2016 has been issued by dditional Chief Judicial Magistrate, Gonda by filling in the blanks of computer typed order by hand.
9. The aspect of filling in the blanks of a computer typed order has already been dealt with by this Court in the case of Ankit (supra) followed in the judgment of Avdhesh (supra) wherein this Court in its judgment and order dated 19.4.2019, after placing reliance over the judgment of the Ankit (supra) held as under:-
"12. This Court in the matter of Ankit Vs State of U.P. And another reported in JIC 2010 (1) page 432 has held that-
" Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4^) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind."(Emphasis supplied)
16. The first issue is whether the Chief Judicial Magistrate has applied his mind before taking cognizance of the offence under section 381 Cr.P.C. The order of cognizance dated 1.3.2019 is annexed with the application as Annexure 6 and the same is quoted below.
U;k;ky; eq[; U;kf;d eftLVªsV] yfyriqjA eq0 ua0 909@19 ljdkj cuke vo/ks'k vkfn /kkjk & 381 vkbZihlh Fkkuk & rkycsgV 01-03-19 vkt vkjksi i= e; nhxkj dkxtkr iqfyl foHkkx ls izkIr gqvkA laKku fy;k x;k] vkns'k gqvk fd ntZ jftLVj gksA vfHk;qDr@vfHk;qDrx.k ds fo:n~/k lEeu tkjh gksA i=koyh fnukad 03&05&19 dks okLrs gkftjh eqfYte is'k gksA eq[; U;kf;d eftLVªsV yfyriqjA (Underline is supplied to show where the space has been left and are filled later-on.) From a perusal of the above order it is evident that it is a typed proforma where only information of case no, name of accused, section, Police Station, date and next date is to be filled by Magistrate. This very practice has been depreciated by the court in the case of Ankit Vs State of U.P. (supra). Though no detailed order is required to pass at the time of taking cognizance but the short cut adopted by the Magistrate is also not acceptable and therefore, in the present case, cognizance order is passed without any application of mind as the same does not reflect that the Magistrate has applied his mind to materials available and also whether the materials are sufficient to proceed against the applicant/accused.
19. In the present case, neither the concerned Magistrate has applied mind before taking cognizance of offence and rather passed an order in the form of proforma order, nor on the basis of materials available, even prima facie ingredients of section 381 IPC are disclosed and therefore, in my considered opinion, present case is squarely covered by category (c) of the judgment passed in the case of State of Haryana And Ors vs Ch. Bhajan Lal And Ors (supra), which states that-
"(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused;
20. In view of the above discussion to secure the ends of justice and to prevent abuse of the process of court below, present is a fit case to exercise the inherent jurisdiction of the court provided under section 482 Cr.P.C to prevent abuse of process of lower court as well as to secure ends of justice. For disposal of the present case para 34 of the judgment passed by Supreme Court in Anand Kumar Mohatta Vs State of NCT of Delhi 2018 SCC on-line 2447 is also very useful and the same is quoted hereinafter.
"34. It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and others which read as follows: -
"7. .....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is 6 1977 (2) SCC 699 14 designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice....."
10. Very recently this Court in the case of Ashu Rawat vs. State of U.P. and others in Application U/s 482 Cr.P.C. No.1388 of 2020 decided on 29.9.2020, again after placing reliance in the case of Ankit (supra) has held as under:-
11- U;kf;d vkns'k dks ;akf=d :i ls iwoZ esa eqfnzr izi= ij fjDr LFkkuksa dks iw.kZ djds ikfjr djus dh vuqefr ugha nh tk ldrhA ,slh izo`fRr dh] bl mPp U;k;ky; us vius vkns'kksa esa fuUnk dh gSA ,sls vkns'k dh iqukjkofr dh vuqefr ugha nh tk ldrh gSA ;g u dsoy U;kf;d ekul dk mi;ksx u djuk n'kkZrk gS cfYd U;kf;d ekunaMks ds izfrdwy Hkh gSA ,slh izFkk dks rRdky jksd nsuk pkfg;sA ;gka ;g nksgjkuk egRoiw.kZ gS fd vkijkf/kd ekeys esa vijk/k dk laKku ysuk o vfHk;qDr dks lEeu djuk ,d xaHkhj fo"k; gSA blfy, vkns'k esa ;g vko';d :i ls n'kkZ;k tkuk pkfg;s fd eftLVsªV us viuk U;kf;d ekul dk mi;ksx djrs gq, okn ds rF;ksa o fof/k ds izko/kkuksa dks /;ku esa j[kdj gh vkns'k ikfjr fd;k gSA 12- mijksDr fo'ksy"k.k esa ;g Li"V gS fd orZeku izdj.k esa] bl U;k;ky; dh vUrfuZfgr 'kfDr;kas¡ dk mi;ksx djuk mfpr gS D;ksafd vk{ksfir vkns'k ds dkj.k U;k;ky; dh dk;Zokgh dk nq:i;ksx gqvk gSA vr% vk{ksfir vkns'k fn0 20-06-2020 ¼lEeu vkns'k½ fujLr fd;k tkrk gS rFkk voj U;k;ky; dks i=koyh okil dh tkrh gS rFkk funsZ'k fd;k tkrk gS fd /kkjk 190¼2½ na0iz0la0 ds varxZr mijksDr fo'ys"k.k o fu"d"kZ dks /;ku esa j[kdj iqu% vkns'k ikfjr djsaA
11. Accordingly, considering the law laid down by this Court in the case of Ankit (supra), Avdhesh (supra) and Ashu Rawat (supra), it is apparent that the impugned order as has been passed in the present case i.e. by filling in the blanks of a computer typed order is legally not sustainable. Even otherwise, in the case of Aquil Ahmad (supra) this Court has specifically advised the Magistrates to refrain themselves from passing such fill-in-the-gap orders.
12. With regard to the exercise of power under section 482 of the Cr. P.C. the guiding principles has been laid down in paragraph 108 of the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 Supreme Court 604 which reads as under:-
"In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or ?complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
13. Considering the aforesaid facts and parameters laid down by the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal (supra) and Rajiv Thapar (supra), the application is allowed and the charge sheet No.195 of 2015 dated 25.10.2015 in Case Crime No.248 of 2015 under Sections 419, 420, 467, 468, 471 of IPC relating to police station - Kotwali Mankapur, District Gonda as well as summoning order dated 29.1.2016 issued by Additional Chief Judicial Magistrate, Gonda are set aside. The learned Magistrate concerned is required to pass a fresh order strictly in accordance with law.
Order Date :- 4.11.2020 RKM.