Partly allowed

Pradeep Kumar Bhardwaj v. State of U.P. and 3 Others

Allahabad HC24 Sept 2024A482/23495/2024

Case brief

AI extract

What is this about?

This court quashed a cryptic summoning order issued under xCr.P.C. without application of mind and in the absence of the complainant or counsel, along with subsequent proceedings including non-bailable warrants, remitting the matter to the trial court for fresh orders.

What did the court decide?

Quashing of the summoning order dated 12.01.2021, non-bailable warrant, and subsequent proceedings; remand to trial court for fresh summoning order.

Pradeep Kumar Bhardwaj vs State of U.P. and 3… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:156431

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Sl.No.43)

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Court No. - 79

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Case :- APPLICATION U/S 482 No. - 23495 of 2024

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Applicant :- Pradeep Kumar Bhardwaj Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ajay Kumar Upadhyay Counsel for Opposite Party :- G.A.

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Hon'ble Anish Kumar Gupta,J.

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Heard Sri Ajay Kumar Upadhyay, learned counsel for the applicant and Sri Prem Prakash Tiwari, learned AGA for the State.

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The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the non-bailable warrant dated 20.02.2021 and the summoning order dated 12.01.2021 as well as the entire proceeding of Complaint Case No. 6270 of 2019 (State of U.P. through Drug Inspector vs. Pradeep Kumar Bhardwaj), under Section 18/27(A)(B)(ii) of Drugs and Cosmetics Act, 1940, P.S. Tajganj, District Agra, pending in the court of Special Chief Judicial Magistrate (Drugs Act), Agra.

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Learned counsel for the applicant submits that initially for the same offences, an FIR was lodged by the opposite party no.2 against the applicant, in which he was charge sheeted and summoned, against which the applicant has approached this Court by filing an Application under Section 482 No. 17998 of 2024 (Pradeep Kumar Bhardwaj vs. State of U.p. and others) wherein the interim protection has already been granted to the applicant. Learned counsel for the applicant submits that after the cognizance was taken on the charge sheet filed by the investigation agency in Case Crime No. 278 of 2018, the applicant was summoned. The instant complaint case has been filed by the complainant on 03.04.2019 and since after filing of the complaint, neither the complainant nor the counsel for the complainant had ever appeared before the trial court. Therefore, vide order dated 12.01.2021, even in the absence of counsel for the complainant as well as in the absence of complainant, summons were issued against the applicant without recording any satisfaction with regard to a prima facie case made out from the complaint filed by the opposite party no.2. Therefore,

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learned counsel for the applicant submits that the summoning order is an illegal cryptic order passed by the trial court, which is not sustainable in law. Since thereafter as well neither the counsel for the complainant nor the complainant has ever appeared, the non-bailable warrants as well as the proceedings under Section 82 Cr.P.C. has been issued against the applicant herein and the summons in the instant case has never been served on the applicant. Therefore, the summoning order as well as the entire proceeding subsequent thereto are the illegal proceedings. In view thereof, learned counsel for the applicant seeks quashing of the summoning order as well as the entire proceeding subsequent to the summoning order against the applicant herein.

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After perusal of the order sheet, learned AGA submits that it is apparent that after filing of the complaint, none has appeared ever before the trial court to press the complaint and the summoning order has been passed against the applicant on 12.01.2021 without application of mind and without the same was pressed by the complainant or counsel for the complainant. From perusal of the summoning order, it is admitted that it is a cryptic order without application of mind and, therefore, the same cannot be sustained. Once the summoning order is not sustained, the entire proceeding subsequent to the summoning order could not also be sustained. However, learned AGA submits that for the offences under the Drugs and Cosmetics Act in view of the judgment of Apex Court in Union of India vs. Ashok Sharma, (2021) 12 SCC 674, the FIR earlier lodged by the complainant is not sustainable and the proceedings on the basis of said FIR cannot continue against the applicant. In view thereof, the judgment of Ashok Kumar Sharma (supra), only the complaint case can be filed, which has been filed in the instant case, subsequent to lodging of the FIR, therefore, the complaint itself cannot be quashed. However, the summoning order is required to be quashed being a cryptic order and the matter may be referred to the trial court to pass a fresh summoning order in accordance with law.

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Having heard the submissions so made by learned counsel for the parties and from the perusal of the record, it is apparent that in the instant complaint case, neither the complainant nor his counsel has ever appeared after filing of the complaint case and vide order dated 12.01.2021, summons have been issued against the applicant. Thereafter further proceedings of summoning order and non-bailable warrants and proceedings under Section 82 Cr.P.C. has been issued against the applicant.

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In the considered opinion of this Court, the summoning order being a cryptic order, which is without application of mind, is

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not sustainable and the same is hereby quashed.

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Since this Court has quashed the summoning order and all the subsequent proceeding after 12.01.2021 are also quashed. However, the matter is remitted back to the trial court to proceed in the matter to pass fresh orders for summoning the applicant herein, if there are sufficient materials available for summoning the applicant, in accordance with law.

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With the aforesaid observation, the instant application under Section 482 Cr.P.C. is disposed of.

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Order Date :- 24.9.2024 Ashish Pd.

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(Anish Kumar Gupta,J.)

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Digitally signed by :- ASHISH PRASAD High Court of Judicature at Allahabad

Pradeep Kumar Bhardwaj v. State of U.P. and 3 Others

Case brief

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Pradeep Kumar Bhardwaj v. State of U.P. and 3 Others

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