Allowed

Tabarak and 2 Others v. State of U.P. and Another

Allahabad HC19 Aug 2019A482/26865/2019

Case brief

AI extract

What is this about?

The High Court carved out of a charge sheet and summoning order. The court held that the lower court had summoned the applicants mechanically without applying its mind to ascertain if the allegations made out any offence. The order was quashed and the matter remanded to pass a fresh order.

What did the court decide?

The summoning order dated 26.3.2019 is quashed and the matter is remanded to the Chief Judicial Magistrate, Bijnor to pass a fresh order within three months.

Tabarak and 2 Others Vs State of U.P. and Another — Writ and Judicial Review | Allahabad HC (2019)

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Court No. - 69

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Case :- APPLICATION U/S 482 No. - 26865 of 2019

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Applicant :- Tabarak And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sanjeev Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Vivek Kumar Singh,J.

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1. Heard learned counsel for the petitioners and Sri Sanjay Singh, learned A.G.A.-I as well as perused the documents available on record.

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2. This petition under Section 482 of Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the petitioners with the following prayers:-

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"It is respectfully prayed that this Hon'ble Court may graciously be pleased to quash the charge sheet dated 6.3.2019, Case Crime No.51/2018, under Sections 9, 39, 50, 51, 52, 66 of Protection Wild Life Animals Act and Section 429, 201 I.P.C., Police Station Barhapur, District Bijnor pending in the Court of Chief Judicial Magistrate, Bijnor as well as the summoning order dated 26.3.2019 ."

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3. The submission of learned counsel for the petitioners is that the learned Magistrate without applying his mind has summoned the accused in a mechanical way filling the date in the typed proforma for taking cognizance. From a perusal of the impugned order, it appears that the learned Magistrate did not try to go through the facts and to ascertain as to what offences were being made out against the accused. In fact, on the basis of allegations made in the facts no offences were being made out against the accused-applicants either under the Wild Life Protection Act or under the Indian Forest Act. The impugned order summoning the applicants is, therefore, illegal and liable to be quashed. In support of His contention learned counsel for the applicant relied on the following judgements:-

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Basrudeen and others Vs. State of U.P. and another reported in 2010 (71) ACC 656

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Saurabh Dewana Vs. State of U.P. reported in 2010 (3) ADJ 622

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3. Ankit Vs. State of U.P. and another Vs. reported in 2009 (67) ACC 532

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4. Sri Sanjay Singh, learned A.G.A.-I although supported the impugned order but fairly accepts that the learned Magistrate was expected to go through the complaint and to ascertain which offences were being made out against the accused on the basis of allegations made in the complaint. Thereafter, he should have summoned the accused for those offences. To this extent, the impugned order can be said to be based on non-application of mind.

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5. Considered the submissions of learned counsel for the petitioners and learned A.G.A.

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6. From a perusal of the impugned order, it appears that the learned Chief Judicial Magistrate

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has summoned the accused-applicants in a mechanical way filling the date in the typed proforma. Learned Chief Judicial Magistrate while summoning the applicants was expected to go through the allegations made the applicants and to satisfy himself as to which offences were, prima facie, being made out against the applicants-accused. It appears that the learned Chief Judicial Magistrate did not bother to go through the allegations made in the complaint and ascertain as to what offences were, prima facie, being made out against the accused on the basis of allegations so made. Apparently, the impugned order passed by the learned Chief Judicial Magistrate suffers from non-application of mind while taking cognizance of the offence.

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7. The impugned summoning order is not well reasoned order, therefore, the same is liable to be quashed and the petition deserves to be allowed and the matter may be remanded back to the learned Chief Judicial Magistrate, Bijnor direction to him to go through the allegations levelled against the applicants and ascertain as to what offences against the accused were, prima facie, being made out against the applicants on the basis of allegations made and pass fresh order, thereafter, he will proceed according to law.

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8. The petition is, therefore, allowed. The summoning order dated 26.3.2019 passed by the learned Chief Judicial Magistrate, Bijnor is hereby quashed and the matter is remanded back to learned Chief Judicial Magistrate, Bijnor with a direction to pass a fresh order in light of the observations made herein above within a period of three months from the date of production of certified copy of this order.

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Order Date :- 19.08.2019 Dev/- PKC

Tabarak and 2 Others v. State of U.P. and Another

Case brief

What is this about?

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Tabarak and 2 Others v. State of U.P. and Another

Case brief

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