Allahabad High Court
Aakash @ Chhotu And Another vs State Of U.P. And Another on 9 November, 2022
Bench: Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 53
Case :- APPLICATION U/S 482 No. - 32056 of 2022
Applicant :- Aakash @ Chhotu And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Brij Raj Singh
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Varma,J.
Heard learned counsel for the applicants and learned A.G.A. for the State- opposite party no. 1.
By means of the instant application under Section 482 Cr.P.C. the applicant has challenged the cognizance order dated 26.06.2019 on the short ground that though the charge-sheet has been submitted against the applicants upon conclusion of investigation under Sections 323, 504 & 506 I.P.C., yet the Magistrate without any justification has taken cognizance under Sections 452, 354, 323, 504, 506 I.P.C., Police Station Soron, District Kasganj.
Learned counsel for the applicant submits that the first information report was lodged under Sections 452, 354(Kha), 323, 504 & 506 I.P.C. against the applicants and Sanjeev Gupta and Sandeep @ Ramu person. The charge-sheet was submitted on 08.11.2018 and the cognizance was taken by the Magistrate on 26.06.2019. He further submits that the order impugned shows non-application of mind on the part of the Magistrate, inasmuch as the order has been passed in a routine and mechanical manner by noticing the sections mentioned in the first information report without even caring to look at the charge-sheet which clearly discloses that upon conclusion of investigation charge-sheet has been filed against the applicant under Sections 323, 504 & 506 I.P.C.
Learned counsel for the applicant has placed reliance upon a judgment of the Hon'ble Supreme Court in the case of State of Gujarat v. Girish Radhakrishnan Varde, (2014) 3 SCC 659, and judgment of this Court in Application U/S 482 No. 15933 of 2022 (Shamshad Ahmad Siddiqui @ Rikki and others v. State of U.P. and another), decided on 28.06.2022. He further submits that the Magistrate cannot add or subtract any offence other than the offence for which charge-sheet is filed.
Learned A.G.A. does not dispute the aforesaid contention and he submits that the matter may be remitted for fresh consideration by the Court concerned.
Considering the nature of the order proposed to be passed and also the fact that keeping the matter pending by issuing notices to the second respondent would unnecessarily delay the proceedings, this application is taken for hearing at this stage itself and is being decided finally with the consent of learned A.G.A.
A perusal of the record clearly shows that the charge-sheet has been submitted against the applicants under Sections 323, 504 & 506 I.P.C., therefore, cognizance could not have been taken in the sections in which the charge-sheet has not been submitted. The impugned order discloses that the Magistrate has not applied his mind to the material placed before him. Cognizance under Section 190(1)(b) Cr.P.C. since can be taken only upon the charge-sheet and the Magistrate has no power to enlarge the sections over and above what is stated in the charge-sheet at the time of taking cognizance. For such reasons, the order taking cognizance dated 26.06.2019, insofar as it relates to the applicants, stands quashed. Liberty, however, stands reserved to the Magistrate to revisit the issue with regard to the applicants only in the light of the above observations and pass a reasoned order within a period of one month from the date of production of a certified copy of this order.
With the above observations and directions, this application stands disposed of.
A copy of this order be sent to the Court concerned by the Registrar (Compliance) of this Court within a week.
Order Date :- 9.11.2022
VPS
