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Allahabad High Court · body

2019 DIGILAW 2665 (ALL)

Gulam Rabbani @ Sonu v. State of U. P.

2019-11-28

MANJU RANI CHAUHAN

body2019
JUDGMENT : 1. The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 26.03.2019 as well as cognizance and summoning order dated 12.04.2019 passed by learned Special Chief Judicial Magistrate, Allahabad in Criminal Case No.619 of 2019 (State Vs. Zulfekar Ali and others), under Sections 147, 148, 308, 452, 323, 504, 325 I.P.C., Police Station Mauaima, District Prayagraj, arising out of Case Crime No.272 of 2018, pending in the Court of Special Chief Judicial Magistrate, Allahabad. 2. Heard Sri Ronak Chaturvedi, learned counsel for the applicant, Sri Amit Singh Chauhan, learned A.G.A. and perused the record. 3. It has been contended by learned counsel for the applicant that the order dated 12.04.2019 contained in Annexure 2 to the application by which cognizance of the offence in the instant matter has been taken suffers from judicial non application of mind. It has further been submitted that the cognizance and summoning order have been passed in a mechanical manner, order being without reasons is bad in the eyes of laws as it reflects non application of mind. It has also been argued on behalf of the applicant that the perusal of record of investigation goes to show that the entire allegations made by opposite party no.2 are false and incorrect and the applicant has falsely been implicated in order to exert pressure upon him, hence entire proceeding is also liable to be quashed. Learned counsel for the applicant has argued that the impugned order dated 12.04.2019 whereby the court below has taken cognizance and has issued summons to the applicant, also reflects non application of mind as it is a single line order, not mentioning the offences or the name of the accused. 4. In support of his contention, learned counsel for the applicant has relied upon Application u/s 482 Cr.P.C. No.11232 of 2018 (Shakuntala Devi Vs. State of U.P. & others), decided on 25.07.2018, Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in (2015) 4 SCC 609 ; Fakhruddin Ahmad Vs. State of Uttaranchal reported in (2008) 17 SCC 157 . 5. In support of his contention, learned counsel for the applicant has relied upon Application u/s 482 Cr.P.C. No.11232 of 2018 (Shakuntala Devi Vs. State of U.P. & others), decided on 25.07.2018, Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in (2015) 4 SCC 609 ; Fakhruddin Ahmad Vs. State of Uttaranchal reported in (2008) 17 SCC 157 . 5. On the other hand, learned A.G.A. has vehemently rebutted the contentions of the applicant's side by submitting that the order taking cognizance and issuing summons against accused is not required to have reasons, much more so when such order is passed upon a charge sheet filed by the Investigating Officer under Section 173 (2) of the Code of Criminal Procedure which itself contains the entire material collected by Investigating Officer, and hence, the impugned order is not amenable to challenge only on this score. According to learned A.G.A. the merit of the order is to be tested on the basis of the contents and allegations of FIR and material available on case diary or on the basis of any other requirement of law necessary to be fulfilled in order to pass order of cognizance and issuing summons against accused. 6. Learned A.G.A. has relied upon several judgments in support of his contention. 7. The Apex Court in the case of Kanti Bhadra Shah and another Vs. State of West Bengal (2000) 1 SCC 722 in para nos.11 and 12 has observed as under : "11. Even in cases instituted otherwise than on police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per the first sub-section of Section 245, if a magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per sub-section (2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both sub-sections he is obliged to record his reasons for doing so. In this context it is pertinent to point out that even in a trial before a court of session, the judge is required to record reasons only if he decides to discharge the accused. (vide Section 227 of the Code). Under both sub-sections he is obliged to record his reasons for doing so. In this context it is pertinent to point out that even in a trial before a court of session, the judge is required to record reasons only if he decides to discharge the accused. (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. 12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985." 8. The Apex Court in the case of Bhushan Kumar and another Vs. State (NCT of Delhi) and another, (2012) 5 SCC 424 has referred the case of Kanti Bhadra Shah's case as well as U.P. Pollution Control Board Vs. Mohan Meakins Ltd. & others (2000) 3 SCC 745 and observed in paragraph nos.12, 13, 14, 19 and 20, which is as follows :- (12) A "summons" is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court. (13) Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. (14) Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith. (15) ................................. (16) ................................ (17) ................................ (18) ................................ (19) This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order. (15) ................................. (16) ................................ (17) ................................ (18) ................................ (19) This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order. (20) It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code." 9. The case of Fakhruddin (supra) upon which the learned counsel for the applicant has placed reliance is of no help to him as the Apex Court in the case of Fakhruddin (supra) was examining the validity of the order passed by Uttaranchal High Court by which it had declined to quash the charge sheet on the ground that it had no power to look into the documents and papers which were filed along with charge sheet for the purpose of considering the prayer for quashing of prosecution, and the Apex Court, while disagreeing with the reasons spelt out by the High Court for refusing to quash the charge sheet set aside the order of the Uttaranchal High Court and remitted the matter back to the High Court for deciding the prayer for quashing of prosecution afresh in accordance with law. 10. The other case, i.e. Shakuntala Devi (supra) which has been relied upon by learned counsel for the applicant is not applicable in the present case as in that case earlier a detailed order was filed containing reasons not to accept the charge sheet as filed. Certain specific observations were made in that order to take notice of contradictions in the statements recorded under Section 161 Cr.P.C. Then, prima facie, it was observed that the investigation had not been properly conducted. A hope was also expressed that if a proper investigation were conducted, it may be possible to collect essential evidence. Certain specific observations were made in that order to take notice of contradictions in the statements recorded under Section 161 Cr.P.C. Then, prima facie, it was observed that the investigation had not been properly conducted. A hope was also expressed that if a proper investigation were conducted, it may be possible to collect essential evidence. Consequently, further investigation was directed, after which cognizance order was passed. 11. In view of the discussions made hereinabove, I think that there is no legal requirement that the trial court should write the order showing reasons for taking cognizance or for framing of charge after going through the several decisions of Hon'ble the Apex Court as well as this Court on subject in issue, I am of the view that once the Magistrate takes cognizance of an offence either without discussing what are the reasons behind it, it shall be presumed that on the basis of material available before him he is satisfied that there is sufficient material for taking cognizance and if he is satisfied with those materials for taking cognizance, the detail discussion of those materials by the learned Magistrate is not required. Further once he issues process, even without writing word "cognizance is taken", it is presumed that he has taken cognizance, the writing of word "cognizance is taken" is not necessary. The reason is that by issuance of process he proceeds with the case and the accused who has been summoned for trial have sufficient opportunity to defend himself at the appropriate stage provided in code. In response of issuance of process/summons it is not open for the accused to challenge the summoning order on the ground that no cognizance has been taken or no satisfaction has been shown or there is no detail discussion of the material available rather he has to follow the next step of the process. 12. The prayer for quashing the order dated 12.04.2019 is refused as I do not see any abuse of the court's process either. 13. It is argued that the co-accused Shahjad Ali @ Babloo and others have been granted relief of bail by a co-ordinate Bench of this Court vide order dated 01.11.2019 passed in Application u/s 482 No.39127 of 2019. The same is reproduced hereinunder :- “Heard learned counsel for the applicants and learned A.G.A. for the State. 13. It is argued that the co-accused Shahjad Ali @ Babloo and others have been granted relief of bail by a co-ordinate Bench of this Court vide order dated 01.11.2019 passed in Application u/s 482 No.39127 of 2019. The same is reproduced hereinunder :- “Heard learned counsel for the applicants and learned A.G.A. for the State. The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 26.3.2019 as well as the cognizance order dated 18.4.2019 and the entire proceedings of Criminal Case No. 619 of 2019, arising out of Case Crime No. 0272 of 2018, under Sections147, 148, 308, 452, 323, 325, 504 I.P.C., Police Station-Mau Aima, District-Prayagraj, pending in the court of Special Chief Judicial Magistrate, Allahabad. The contention of learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purpose of causing harassment. He pointed out certain documents and statements in support of his contention. At this stage, the argument raised by learned counsel for the applicants involves factual disputes and appraisal of evidence. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants at this stage. All the submissions made at the bar, relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The prayer for quashing the entire proceeding of the aforesaid case is refused. However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicants appear and surrender before the court below within 60 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. With the aforesaid directions, this application is finally disposed of. Till then no coercive action shall be taken against the applicants. However, in case, the applicants do not appears before the court below within the aforesaid period, coercive action shall be taken against them. It is made clear that the applicants will not be granted any further time by this Court for surrendering before the court below as directed above.” 14. However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application on the same day, if possible, keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). 15. In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to. 16. With the aforesaid observations, this application is finally disposed off.