High Court set aside a trial court order of taking cognizance and summoning an applicant under Cr.P.C. for lack of reasoning and application of mind, directing the trial court to pass a fresh speaking order within two months.
Impugned order set aside; trial court directed to pass a fresh speaking and reasoned order within two months.
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Court No. - 73
Case :- APPLICATION U/S 482 No. - 5674 of 2023 Applicant :- Akhilesh Yadav Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vineet Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
Heard Mr. Vineet Kumar Singh, learned counsel for the applicant and the learned A.G.A. for the State.
Initially, the present application under Section 482 Cr.P.C. has been filed to quash the charge-sheet dated 9th December, 2022, impugned order dated 24th January, 2023 as well as entire proceedings of Special Sessions Case No. 54 of 2023 (State Vs. Akilesh Yadav), arising out of Case Crime No. 0250 of 2022, under Sections 354-D, 504 and 506 I.P.C., Sections 11/12 POCSO Act as also under Sections 3 (1) (dha) and 3 (2) (Gha) S.C./S.T. Act, Police Station-Paniyara, District-Maharajganj, pending in the Court of Special Judge (Exclusive POCSO Act), Maharajganj.
Today, learned counsel for the applicants has confined his relief to set aside the taking cognizance/summoning order dated 24th January, 2023. Learned counsel for the applicant submits that the taking cognizance/summoning order dated 24th January, 2023 has been passed by the Special Judge without applying his judicial mind and the same is vague, ambiguous and nullity. He next submits that the perusal of the impugned order indicates that except for recording that on deeper scrutiny of the facts mentioned in the police documents, case diary and other prosecution documents, there is sufficient ground for taking cognizance and summoning the applicant, absolutely no reasons have been mentioned in support thereof. He further submits that it is settled law that every orders are to be judged on reasons recorded therein. He therefore, submits that the impugned order be set aside. Apart from the above, learned counsel for the applicant submits that the FIR has been lodged under Sections 354, 504, 506 I.P.C., Sections 3 (1) (dha) and 3 (2) (va) S.C./S.T. Act, and upon conclusion of the investigation, the charge-sheet has been submitted under Sections 354-D, 504, 506 I.P.C., Section 11/12 POCSO Act as also under Sections 3 (1) (dha) and 3 (2) (va) S.C./S.T. Act, whereas the trial court while passing the impugned order has taken cognizance and summoned the applicant under Sections 354-D, 504 and 506 I.P.C., Sections 11/12 POCSO Act as also under Sections 3 (1) (dha) and 3 (2) (Gha) S.C./S.T. Act, meaning thereby that Section 3 (2) (Gha) S.C./S.T. Act is not included in the charge-sheet nor the same has been mentioned under the provisions of S.C./S.T. Act. In view of the aforesaid illegality committed by the trial court while passing the impugned order, learned counsel for the applicant submits that the trial court cannot add or substract any Section at the stage of taking cognizance or passing the summoning order, the same can only be
done at the stage of framing of charge. To bolster the aforesaid submission, learned counsel for the applicant has placed reliance upon the judgment of the Apex Court in the case of Smt. Shalini Kashyap & Another Vs. State of U.P. & Others reported in 2022 0 Supreme (All) 1008 , wherein in paragraph nos. the Apex Court has held as under:
"13. The first argument of learned counsel for applicants that addition or substraction of charge for any offence any section is not permissible at the stage of cognizance and it is permissible by the Trial Court only at the time of framing of charge under Sections 216, 218 or Section 228 Cr.P.C. as the case may be.
14. The above submissions have a support of the judgment passed by Supreme Court in State of Gujarat (supra), wherein the Supreme Court has specifically held that Magistrate in a case which is based on a police report cannot add or substract section at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge, therefore, I find merit in the first argument of counsel for the applicants, that learned Magistrate has committed error by adding sections at the time of taking cognizanace as well as by the Revisional Court."
On the cumulative strength of the aforesaid, learned counsel for the applicant submits that the order impugned cannot be legally sustained and is liable to be set aside.
Though the learned A.G.A. has opposed the submissions made by the learned counsel for the applicant by submitting that due to typographical error the said section has been transcribed in the impugned order but he has no objection if the impugned order is set aside and the trial court is directed to pass a fresh order.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application. It is an admitted position that the impugned order has been passed without application of mind on a printed format.
In the case of Lalankumar Singh & Ors. Vs. State of Maharashtra passed in Criminal Appeal No. 1757 of 2022 vide judgment dated 11th October, 2022 , in paragraph no.28 the Apex Court has held as follows:
"28. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation, which reads thus:
"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192, upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
Accordingly, for the reasons recorded in the case of Lallan Kumar Singh (Supra) as well as in the case of Smt. Shalini Kashyap (Supra) and after perusing the entire records, this Court finds that the order impugned cannot be legally sustained. Accordingly, the same is set aside. The trial court shall pass a fresh speaking and reasoned order, in accordance with law, preferably within two months from the date of production of a certified copy of this order.
With the aforesaid directions/observations, this application stands allowed.
Office is directed to sent a copy of this order to the court concerned.
(Shiv Shanker Prasad, J.)
Order Date :- 14.3.2023 Sushil/-
Digitally signed by :- SUSHIL KUMAR SINGH High Court of Judicature at Allahabad
2 issues framed by the court
Whether the order of taking cognizance and summoning the applicant was passed without application of mind and without recording reasons.
Whether the trial court could have added or subtracted sections at the stage of taking cognizance instead of framing of charge.
Colour shows how this judgement treated each authority
Smt. Shalini Kashyap & Another Vs. State of U.P. & OthersRelied on¶6
Smt. Shalini Kashyap & Another Vs. State of U.P. & Others reported in 2022 0 Supreme (All) 1008
Lalankumar Singh & Ors. Vs. State of MaharashtraRelied on¶12
Lalankumar Singh & Ors. Vs. State of Maharashtra passed in Criminal Appeal No. 1757 of 2022
Sunil Bharti Mittal Vs. Central Bureau of InvestigationReferred¶14
Sunil Bharti Mittal Vs. Central Bureau of Investigation
3 provisions across 1 enactments
Akhilesh Yadav
State Of U.P.
Other
Shiv Shanker Prasad
Sushil Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
