Disposed

Mohd. Zahid v. State of U.P. Thru. Secy. Home Lko. and Another

Allahabad HC29 May 2024A482/4990/2024

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the Court quashed a previous quashing of a summoning order as the specific summoning order dated 08.04.2023 was already quashed by a Co-ordinate Bench. The petition was disposed of with a direction to the trial court to pass a fresh order expeditiously.

What did the court decide?

Petition disposed; direction to trial court to pass a fresh order upon the charge sheet and police report expeditiously.

Mohd. Zahid vs State of U.P. Thru. Secy. Home… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:41094

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Court No. - 15

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Case :- APPLICATION U/S 482 No. - 4990 of 2024

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Applicant :- Mohd. Zahid Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another

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Counsel for Applicant :- Anil Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the petitioner, learned A.G.A. for the State-respondent.

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The petitioner has filed this petition seeking quashing of criminal proceedings of Case No.322/2023 (State of U.P. vs. Zahid and other) pending before the court of Additional Chief Judicial Magistrate, Court No.25, Barabanki as well as the charge-sheet dated 03.10.2022 filed by the Investigating Officer before the court in pursuance of Case Crime No.338/2022, under Sections 323/498-A IPC and Section 3/4 of Dowry Prohibition Act, P.S. Dariyabad, District Barabanki.

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Learned counsel for the petitioner submits that co-accused Mohd. Lateef and another have filed a petition under Section 482 Cr.P.C. bearing No.3937 of 2024 (Mohd. Lateef and another vs. State of U.P. and another) by challenging the proceedings impugned herein.

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The Co-ordinate Bench of this Court vide order dated 29.04.2024 has allowed the petition while quashing the summoning order dated 08.04.2023 and remanded the matter back to the learned court below to pass a fresh order expeditiously. The order passed by the Co-ordinate Bench of this Court is extracted below:-

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"Heard learned counsel for the applicants and learned A.G.A.

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The present application under Section 482 Cr.P.C. has been filed with the following prayers:-

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"(1) This Hon'ble Court may kindly pleased to prayer to quash the Criminal Proceedings of Case No. 322/2023 (State of UP. vs Jahid and Other) pending before the court of Additional Chief Judicial Magistrate, Court No. 25, Barabanki as well as the Charge sheet dated 03.10.2022 filed by the Investigating Officer before the court in pursuance of Case Crime No. 338/2022, Us 323/498-A I.P.C. and Section 3/4 of Dowry Prohibition Act, relating to Police Station- Dariyabad, District - Barabanki may also kindly be quashed against the petitioners as contained in Annexure No. 01 to this petition.

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(2) It is also prayed that the summoning order dated 08.04.2023 passed by Additional Chief Judicial Magistrate, Court No. 25, Barabanki on printed proforma as well as subsequent orders passed against the petitioners in Criminal Case No. 322/2023 (State of U.P. vs Jahid and Other) initiated on the basis of Charge sheet dated 03.10.2022 pending before the court of Additional Chief Judicial Magistrate, Court No. 25, Barabanki arising out of Case Crime No. 338/2022, U/s 323/498-A I.P.C. and Section 3/4 of Dowry Prohibition Act, relating to Police Station- Dariyabad, District Barabanki against the petitioners may also be quashed as contained in Annexure No. 02 to this petition.

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(3) It is further prayed that further proceeding of Criminal Case No. 322/2023 State of U.P. vs Jahid and Other) initiated on the basis of Charge sheet dated 3.10.2022 pending before the court of Additional Chief Judicial Magistrate, Court No. 25, Barabanki arising out of Case Crime No. 338/2022, U/s 323/498- A IP.C. and Section 3/4 of Dowry Prohibition Act, relating to Police Station- Dariyabad, District Barabanki as well as operation and implementation of order dated 08.04.2023 passed by learned magistrate summoning the petitioner on a printed proforma may also kindly be stayed against the petitioners during the pendency of present petition."

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Learned counsel for the applicants submits that in the case F.I.R.. has been lodged by opposite party no. 2 on 8.9.2022 vide crime no. 338 of 2022. Thereafter charge-sheet has been submitted after investigation on 3.10.2022 and Magistrate has taken cognizance of offence on 8.4.2023.

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Learned counsel for the applicants has based his argument on the ground that according to law learned Magistrate has not applied his judicial mind for taking cognizance of offence, which is contrary to law hence impugned order dated 8.4.2023 is liable to be quashed.

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Learned A.G.A. has opposed the aforesaid prayer. However, he did not dispute that the impugned order is on printed proforma.

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After lodging of First Information Report lodged by opposite party no. 2 on 08.09.2022 and after investigation, charge-sheet has been filed on 3.10.2022 and the Magistrate concerned (A.C.J.M. Barabanki court no. 25) has passed the cognizance order dated 8.04.2023 upon the police

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report and charge sheet. It shows that cognizance order has been passed on the printed proforma by filling the date and sections, in the aforesaid order it seems overwriting on dates also.

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The word cognizance is used to indicate the point of time when the Magistrate or Judge, first takes judicial notice of an offence. It is the application of judicial mind to the averments in the police report/complaint, that constitutes the cognizance. It is apparent on record that summoning order after taking cognizance on 8.04.2023 has been passed by the Magistrate concerned on printed proforma by filling up the gap.

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In support of his submission learned counsel for the applicants placed reliance upon the judgments of the this Court passed in the case of Hamid Rajza Vs. State of U.P. and others; reported as 2024 (1) JIC 448 (All) (LB), Pankaj Jaiswal Vs. State of U.P. another (Application under Section 482 Cr.P.C. No. 11334 of 2021) dated 9.8.2021 and Krishna Kumar (As per F.I.R and the charge sheet) Krishna Kumar Naayi) and others Vs.State of U.P. and others (Application under Section 482 Cr.P.C. No. 677 of 2023) dated 24.1.2023 Learned counsel for the applicants also placed reliance on the case laws Basaruddin and others vs. State of U.P. and others 2011 (1) GIC 335 (ALLD.) (LB) in which the court has held that by filling the typed proforma, the accused has been summoned by the court in mechanical way. It is required by law that there must be application of judicial mind and Magistrate has to satisfy himself regarding prima facie case upon which cognizance can be taken and accused can be summoned. Apparently, the summoning order passed by the learned Magistrate suffers from non-application of mind while taking cognizance of the offence.

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Learned counsel for the applicants has also placed reliance on the judgment passed in Kavi Ahmad vs. State of U.P. and others Criminal Revision No. 3209 of 010 and Abdul Rasheed and others vs. State of U.P. and others 2010 (3) GIC 761 (ALLD.) that whenever, any police report/complaint is filed before Magistrate, it is mandatory for Magistrate to apply his mind to the fact stated in the report/complaint for taking cognizance and the Magistrate may summon the accused if he finds that prima facie there is sufficient material on record to proceed with the matter.

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It has been held that in the case of Arvind Pandey and others vs. State of U.P. and others Application U/s 482 Cr.P.C. No. 15372 of 2019 by this Court that judicial orders cannot be allowed to be passed in a mechanical manner either by filling in blank on a printed proforma or by affixing a ready made seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate. This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms.

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In view of the above, the summoning order dated 08.04.2023 is hereby quashed and matter is remanded back to the court concerned to pass a fresh order upon charge sheet and police report dated 3.10.2022, expeditiously in accordance with law.

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The District and Sessions Judge, Barabanki shall also ascertain that no such summoning be passed in printed proforma and without application of mind in future.

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At this stage, the petition is allowed."

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A perusal of the order shows that summoning order dated 08.04.2023 has already been quashed by the Co-ordinate Bench of this Court vide order dated 29.04.2024 passed in Application U/S 482 No.3937 of 2024 therefore, there is no need to pass a fresh order as the impugned summoning order dated 08.04.2023 by which the petitioner was also summoned along with the coaccused persons Mohd. Lateef and another has already been quashed.

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With these observations, the petition stands disposed of with a direction to the learned trial court to pass a fresh order in terms of the judgment dated 29.04.2024 passed in Application U/S 482 No.3937 of 2024 (Mohd. Lateef and another vs. State of U.P. and another) for the petitioner also.

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Order Date :- 29.5.2024 Saurabh Yadav/-

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Digitally signed by :- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Zahid v. State of U.P. Thru. Secy. Home Lko. and Another

Case brief

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Mohd. Zahid v. State of U.P. Thru. Secy. Home Lko. and Another

Case brief

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