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2017 DIGILAW 1594 (ALL)

RAJ KUMAR v. STATE OF U. P.

2017-07-04

HARSH KUMAR

body2017
JUDGMENT : Harsh Kumar, J. 1. Counter affidavit filed by learned A.G.A. today in the Court, is taken on record. 2. The present revision has been filed by accused Raj Kumar against the order of cognizance and summoning dated 04.05.2010 issued by Special Chief Judicial Magistrate, Agra in Complaint Case No. 520 of 2010 (State Vs. Raj Kumar) under section 18/27 Drug and Cosmetics Act, 1940. 3. Heard Shri K.K. Dwivedi learned counsel for revisionist, learned A.G.A. and perused the record. 4. The only legal point raised by the counsel for revisionist in this revision is that the impugned order of issuing process against complainant has been passed in cyclostyled manner without due application of judicial mind to the facts of the case by learned Magistrate; that the certified copy of impugned order at page 4 shows that the impugned order is on a printed proforma printed with the name of complainant and only spaces of complaint number, date of order, name of accused, police station, sections have been left blank which have been filled at the time of passing the order; that as per averments made in complaint, the recovery of drugs was made from the premises of Sushil Kumar and mere on the contention of Sushil Kumar that he has let out the premises to revisionist and another, complaint has been filed against revisionist and another; that the learned Magistrate without recording any finding about the prima facie evidence of alleged tenancy of applicant over premises in question, has issued process against them; that apart from above, a F.I.R. has also been lodged for the alleged recovery at Case Crime No. 154 of 2009 under sections 419, 420, 274, 275, 276 I.P.C. 18/27 Drugs and Cosmetics Act, 1940; that in ADJ 2010 (3) 622 in the case of Saurabh Dewana Vs. State of U.P., this Court has held that "passing of such orders on printed proforma by a Judicial Officer/Magistrate, in cyclostyled manner without due application of mind merely, by filling the blanks is very unfortunate"; that in the circumstances, the impugned order is wrong and illegal and is liable to be set aside. 5. Per contra, learned A.G.A. supported the impugned order and contended that it is wrong to say that order has been passed without due application of mind. 6. 5. Per contra, learned A.G.A. supported the impugned order and contended that it is wrong to say that order has been passed without due application of mind. 6. Upon hearing the counsel for the parties and perusal of certified copy of impugned order, I find that the impugned order has been passed on a complaint made by the Drug Inspector. It is settled principle of law that "upon filing of a complaint under Chapter XV of the Code of Criminal Procedure, the court after recording the statement of complainant and his witnesses under sections 200 and 202 Cr.P.C., as required, if finds sufficient ground for proceeding and taking cognizance of the offence shall issue process against the accused and if finds no sufficient ground for a proceeding, shall dismiss the complaint." 7. In this case undisputedly the recovery of drugs has been made from the premises of Sushil Kumar and it is contended that the Sushil Kumar informed that the premises has been let out by his wife to revisionist Raj Kumar and one Yogesh Palwar. In the impugned order, the learned Magistrate has not recorded any finding of prima facie evidence of tenancy of revisionist and Yogesh Palwar over the premises in question and without recording any satisfaction about tenancy has issued process against the alleged tenants leaving the owner of premises. The perusal of impugned order shows that it has been passed on a printed proforma merely by filling gaps after filling the blanks by court employee and putting of signature by Magistrate. Such type of orders have been held to be illegal and unwarranted at number of times by the court. Hence the impugned order may not be considered to be a judicial and legal order and may not be allowed to stand. 8. In view of the discussions made above, I have come to the conclusion that impugned order has been passed wrongly and illegally, without due application of judicial mind and merely by filling the gaps in printed proforma, in a cyclostyled manner. The revision succeeds and the impugned order is liable to be set aside. 9. The revision is allowed accordingly. 10. The impugned order dated 04.05.2010 is set aside. Let a copy of this order be sent to court below for proceeding with the complaint case in accordance with law and passing appropriate orders.