Yatish Chandra Gupta vs State Of U.P. And Another
2021 Latest Caselaw 3117 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 02.12.2020
 
Delivered on 03.03.2021
 
Court No. - 80
 

 
Case :- APPLICATION U/S 482 No. - 1644 of 2006
 

 
Applicant :- Yatish Chandra Gupta
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Rajesh Dutta Pandey
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Rajendra Kumar-IV,J.

1. Heard Sri Rajesh Dutt Pandey, learned counsel for the applicant and learned AGA for the State.

2. Instant application under Section 482 Cr.P.C. has been filed by applicant - Yatish Chandra Gupta seeking following reliefs :-

"to quash the entire proceedings of Criminal Case No. 1893/IX/2004 (State of U.P. vs. Yatish Chandra Gupta) arising out of Charge sheet No.133-B of 2004 dated 02.08.2004 under Sections 420, 467, 468, 471, 120-B, 255, 258, 259, 260 I.P.C., pending in the Court of Additional Chief Judicial Magistrate-IV, Mathura".

3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. He has not committed any offence. The applicant is not named in F.I.R. but his name came into light during investigation. It is further submitted by learned counsel for the applicant that the first information report was lodged by Executive Engineer when the stamp vendor Rajesh Kumar was arrested, he discloses the name of applicant whereas he is the bona fide purchaser of stamp. There is no evidence of making any forged stamp against the applicant. He further submitted that the Investigating Officer of the case did not collect proper evidence and without any sufficient evidence, he has submitted charge sheet against applicant. He further argued that while taking cognizance upon the charge sheet submitted by Investigating Officer, learned Magistrate did not apply his mind and without appreciation of evidence and proper application of judicial mind, he took cognizance over the mater in very causal manner. Thus, cognizance order and subsequent proceedings thereof is bad in law and liable to be quashed. He showed some papers in favour of his contentions.

4. On the other hand learned AGA opposed the prayer and submitted that accused-applicant, knowing that stamp papers are not genuine, used them as genuine paper. Later on they were found forged. When the matter came to the notice of Executive Engineer, he lodged F.I.R., investigation came to be conducted and I.O. found sufficient evidence against the accused-applicant and submitted charge sheet against him. Learned AGA further submits that the accused-applicant was aware to the fact that stamp papers are forged whether he is the bona fide purchaser or not is the subject matter of evidence and it cannot be adjudicated at this stage under Section 482 Cr.P.C. but it is conceded by learned AGA that cognizance and summoning order prejudices the right of accused and it is not a speaking order.

5. Cognizance order dated 26.11.2004 is reproduced as under :-

"26&11&2004

vkt vkjksi irz izkIr gqvk A

CD dk voyksdu fd;k A izlaKku ysus dk

i;kZIr vk/kkj gSA ntZ jftLVj gks A udy rS;kj gks A

irzkoyh okLrs nsus udy fn0 25-02-2004 dks

is'k gksA"

6. Perusal of impugned order reflects that it has been passed in causal manner. It contains no fact, no evidence and no controversy between the parties. It reflects, no application of judicial mind in passing of the order in such manner which prejudices the right of accused. Passing of cognizance order in such manner must be deprecated. Learned Magistrate has not considered the material placed before him along with charge sheet, impugned order is very cryptic and causal one, which does not reflect the application of judicial mind of learned Magistrate.

7. In ruling "M/s. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998 UPCrR 118" Hon'ble Supreme Court held :-

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

8. In "Paul George vs. State, 2002 Cri.L.J. 996" Hon'ble Supreme Court held :-

"We feel that whatever be the outcome of the pleas raised by the appellant on merit, the order disposing of the matter must indicate application of mind to the case and some reasons be assigned for negating or accepting such pleas.- - - - - It is true that it may depend upon the nature of the matter which is being dealt with by the Court and the nature of the jurisdiction being exercised as to in what manner the reasons may be recorded e.g. in an order of affirmance detailed reasons or discussion may not be necessary but some brief indication by the application of mind may be traceable to affirm an order would certainly be required. Mere ritual of repeating the words or language used in the provisions, saying that no illegality, impropriety or jurisdictional error is found in the judgment under challenge without even a whisper of the merits of the matter or nature of pleas raised does not meet the requirement of decision of a case judicially."

9. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 the Apex Court had held :

"Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words "after considering" and "the Magistrate is of opinion that there is no sufficient ground for proceeding". These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing process. If this were not the requirement, consequences could be far reaching. If a Magistrate had to issue process in every case, the burden of work before the Magistrate as well as the harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the Code starts with the words "if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding". The words "sufficient ground for proceeding" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed."

10. In view of the above legal position, application under Section 482 Cr.P.C. deserves to be allowed. It is accordingly, allowed. Cognizance order and further proceedings pursuant thereto are set aside.

11. Learned Magistrate is directed to pass a fresh, reasoned and speaking order considering the allegations made in F.I.R., evidence collected by Investigating Officer during investigation and other material annexed with the charge sheet in accordance with law expeditiously but not later than four months from the date when the order is brought to his notice.

12. Office is directed to communicate this order to the Court concerned through District Judge concerned forthwith.

Order Date :- 03.03.2021

Manoj