Allowed

Gulab Shanker and Others v. State of U.P. and Another

Allahabad HC4 Dec 2019A482/13425/2005

Case brief

AI extract

What is this about?

Criminal Court allowed an application under Section 482 Cr.P.C. to quash a Magistrate's order summoning the accused solely on the charge sheet without recording reasons, holding it reflected a total lack of application of mind and setting aside the order for fresh consideration.

What did the court decide?

Order dated 15.04.2004 is set aside. Magistrate to consider charge sheet and pass fresh order.

Gulab Shanker and Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 13425 of 2005

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Applicant :- Gulab Shanker and others Opposite Party :- State of U.P. and another Counsel for Applicant :- Ali Hasan Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Sudhir Agarwal, J.

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Heard Sri Asif Hasan, Advocate, holding brief of Sri Ali Hasan, learned counsel for applicant and learned A.G.A. for State of U.P.

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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 summoning order dated 15.04.2004 passed by 1^st Additional Chief Judicial Magistrate, Varanasi in Case No. 5605 of 2003, under Sections 147, 323, 452, 504, 506 I.P.C., Police Station Cholapur, District Varanasi.

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It is contended that when charge sheet was received by Magistrate, Kanpur Dehat, he simply passed order dated 15.04.2004 that let the case be registered and issue summons 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 15.04.2004 reads as under :

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^^vkt i=koyh udy foHkkx ls izkIr gqbZA ntZ jftLVj gksA vfHk0 dks lEeu okLrs gkftjh fn0 29-6-04 dks is'k gksA^^

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"Record received today from copying section. The case be registered. Accused be summoned fixing 29-6-04 for appearance." (English translation by Court)

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It clearly shows non application of mind on the part of Magistrate who issued summons to accused.

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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

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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:

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"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 chargesheet 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."

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Learned counsel for applicant has also placed reliance on a Supreme Court judgment in Fakhruddin Ahmad vs. State of Uttraranchal, 2009 (64) All Cri C 774 and also on a judgment of this Court in Akash Garg vs. State of U. P. and others, 2011 (1) ADJ

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849 .

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Learned A.G.A. also could not dispute that impugned order shows non application of mind.

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In view thereof, this application is allowed. Order dated 15.04.2004 is hereby set aside. Magistrate concerned shall now consider the charge sheet and other material and pass fresh order in accordance with law.

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Order Date :- 04.12.2019 PS

Gulab Shanker and Others v. State of U.P. and Another

Case brief

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Gulab Shanker and Others v. State of U.P. and Another

Case brief

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