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2010 DIGILAW 747 (ALL)

Satesh Kumar v. State of U. P. and Another

2010-02-26

SUBHASH CHANDRA AGARWAL

body2010
Hon'ble S.C. Agarwal, J. This application under Section 482 Cr.P.C. has been filed to set-aside the order dated 11.8.2009 passed by Chief Judicial Magistrate, Jalaun at Orai taking cognizance in criminal case no.1732 of 2009 arising out of case crime no.201 of 2009 State of U.P. Versus Satesh Kumar & Another under Sections 452, 323, 504, 506, 325 I.P.C., Police Station Kotwali - Jalaun, Distrcit Jalaun. Heard Sri Ajay Sengar, learned counsel for applicant and learned A.G.A. for respondent no.1. Issue of notice to opposite party no.2 is dispensed with. The impugned order has been challenged by learned counsel for applicant on a technical ground only that learned Chief Judicial Magistrate did not apply his mind before taking cognizance of the offence. Reliance has been placed on a decision of the Hon'ble Apex Court in the case of Mangoo @ Mangal Singh Vs. State of M.P. 2009 (64) ACC 779 wherein it was held as under : "Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender." Learned counsel for applicant submitted that from the impugned order it does not transpire that the Magistrate had taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith, and therefore, the impugned order be quashed and Magistrate be directed to decide the matter afresh. Section 173 (5) of the Code of Criminal Procedure, 1973 provides as under : When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. Reference to Section 170 of the Code in Section 173(5) Cr.P.C. relates to the cases where after investigation sufficient evidence against the accused was found. The order dated 11.8.2009 passed by the Magistrate translated into english reads as follows : Today this charge-sheet has been received. Perused. It is ordered to be registered. Cognizance taken. Copies be prepared. Accused-persons be summoned for 22.10.2009. Sd./- C.J.M., Orai 11.8.2009. A perusal of the impugned order shows that charge-sheet was perused by the Magistrate. A perusal of the charge-sheet means perusal of all the documents submitted by the police along with the charge-sheet including case diary as envisaged by Section 173 (5) of the Code of Criminal Procedure. No doubt it is imperative on the part of the Magistrate to apply his mind to the facts of the case and the material collected by the police at the time of taking cognizance, but the Magistrate is not required to pass a detailed order at the time of taking cognizance. When the Magistrate uses the word "Perused", it implies that he has perused the charge-sheet and the accompanying documents including the statements recorded under Section 161 Cr.P.C. Thus, I do not find any error or illegality in the impugned order. F.I.R. was lodged against applicant Satesh Kumar and co-accused Jagdish on 8.2.2008 at 17:30 p.m. by the complainant Shailendra Singh alleging therein that on 8.2.2008 at 5:00 p.m. accused Satesh and Jagdish entered his P.C.O. and abused him. Satesh fired at the complainant and both the accused beat the complainant with iron rod. The Accused also snatched gold chain, mobile phone and Rs.3900/- in cash from the complainant. Satesh fired at the complainant and both the accused beat the complainant with iron rod. The Accused also snatched gold chain, mobile phone and Rs.3900/- in cash from the complainant. F.I.R. was lodged under Sections 395, 397 I.P.C., but after investigation, charge-sheet was submitted under Sections 452, 325, 323, 504, 506 I.P.C. The copies of the statements of the witnesses Rama Shanker and Arvind Kumar Sengar and the complainant Shailendra Singh recorded by the investigating officer under Section 161 Cr.P.C. have been annexed with the application as Annexure no.6. These statements corroborate the prosecution version regarding trespass and causing injuries to the complainant by the applicant and co-accused. The copies of the injury report and x-ray report have been filed with the application as Annexure no.5. There was a contusion 6 cm. x 2 cm. on the palmer aspect of right thumb (right hand) on the person of complainant. On x-ray, thumb was found dislocated. Thus, there was sufficient material in the case diary against the applicant. I do not find any error or illegality in the impugned order. The application lacks merit and is liable to be dismissed and is accordingly dismissed. However in the circumstances of the case, it is directed that if the applicant surrenders before the Chief Judicial Magistrate, Jalaun within 30 days from the date of this order and moves an application for bail, his bail application shall be considered and disposed of by the Courts below on the same day in the light of directions given by Seven Judges' Bench of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290, as affirmed by the Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).