# Alok Gupta v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-23
- **Case number:** U/S 482/378/407 No. 4500 of 2019
- **Bench:** Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alok-gupta-v-state-of-u-p-anr-46729
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 406 - Punishment for
criminal breach of trust, Sections 420 -
cheating
and
dishonestly
inducing
delivery of property, Sections 465 -
punishment for forgery, Sections 468 -
forgery for purpose of cheating, Sections
471
-
using
as
genuine
a
forged
document or eloectronic record, Sections
504 - intentional insult with intent to
provoke breach of the peace, Sections
506
-
punishment
for
criminal
intimidation.

(B) Criminal law - Code of criminal
procedure,
1973
-
Section
190
-
Cognizance of offences by Magistrates -
at the time of taking cognizance there is
no requirement of providing opportunity
of
hearing
to either
party
-
Only
satisfaction of the concerned Magistrate
is required after application of legal
mind. (Para -10)
Petition has been filed for quashing of the
order dated 14.08.2018 - summoning the
accused-applicant to face the trial - pending
in the Court of Chief Judicial Magistrate -
ground - Chief Judicial Magistrate has not
applied its mind and also violated the
principle of natural justice.

HELD:- Accused-applicant has no right to be
heard at the time of taking cognizance, so no
prejudice
has
been
caused
to
the
petitioner/accused. There is no justification to
interfere under Section 482 Cr.P.C. and to
quash the impugned order dated 14.08.2018
passed Chief Judicial Magistrate. (Para -
11,14)

Application u/s 482 Cr.P.C. dismissed.
(E-6)

List of Cases cited:-

## Text

2 All. Alok Gupta Vs. State of U.P. & Anr.
177
concerned Court below is directed to
expedite the proceedings of the case
pending before it in accordance with law.
----------
(2021)02ILR A177
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2021

BEFORE

THE HON'BLE MRS. SAROJ YADAV, J.

U/S 482/378/407 No. 4500 of 2019

Alok Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Siddhartha Sinha

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 406 - Punishment for
criminal breach of trust, Sections 420 -
cheating
and
dishonestly
inducing
delivery of property, Sections 465 -
punishment for forgery, Sections 468 -
forgery for purpose of cheating, Sections
471
-
using
as
genuine
a
forged
document or eloectronic record, Sections
504 - intentional insult with intent to
provoke breach of the peace, Sections
506
-
punishment
for
criminal
intimidation.

(B) Criminal law - Code of criminal
procedure,
1973
-
Section
190
-
Cognizance of offences by Magistrates -
at the time of taking cognizance there is
no requirement of providing opportunity
of
hearing
to either
party
-
Only
satisfaction of the concerned Magistrate
is required after application of legal
mind. (Para -10)
Petition has been filed for quashing of the
order dated 14.08.2018 - summoning the
accused-applicant to face the trial - pending
in the Court of Chief Judicial Magistrate -
ground - Chief Judicial Magistrate has not
applied its mind and also violated the
principle of natural justice.

HELD:- Accused-applicant has no right to be
heard at the time of taking cognizance, so no
prejudice
has
been
caused
to
the
petitioner/accused. There is no justification to
interfere under Section 482 Cr.P.C. and to
quash the impugned order dated 14.08.2018
passed Chief Judicial Magistrate. (Para -
11,14)

Application u/s 482 Cr.P.C. dismissed.
(E-6)

List of Cases cited:-

1. Mahesh Chand & etc Vs St. of Raj. & etc, ,
AIR 1986 Raj. 58

2. Bhushan Kumar & anr. Vs State (NCT of
Delhi) & anr. , AIR (SC) 1747 (2012)

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This petition under Section 482 of the
Code
of
Criminal
Procedure,
1973
(hereinafter referred as Cr.P.C.) has been filed
for quashing of the order dated 14.08.2018
summoning the accused-applicant to face the
trial, passed in Case Crime No. 515/2014,
under Sections 406/420/465/468/471/504/506
of the Indian Penal Code, 1860 (hereinafter
referred as I.P.C.), Police Station Hazratganj,
District Lucknow pending in the Court of
learned Chief Judicial Magistrate, Lucknow.

2. Heard Shri Siddhartha Sinha, learned
counsel for the petitioner/accused, Shri Amit
Chaudhary, learned counsel appearing on
behalf of the opposite party no. 2 and learned
A.G.A. for the State.

3. In short, the facts necessary for
disposal of this petition are as follows:-
178 INDIAN LAW REPORTS ALLAHABAD SERIES

The opposite party no. 2 -Arun
Kumar Gupta lodged a first information
report bearing Case Crime No. 515/2014,
under Sections 406 /420 /465 /468 /471
/504 /506 IPC, Police Station Hazratganj,
District
Lucknow
against
the
petitioner/accused
Alok
Gupta.
After
investigation, the Investigating Officer
submitted
charge-sheet
against
the
petitioner/accused in the Court. Learned
Chief Judicial Magistrate, Lucknow took
cognizance vide order dated 01.12.2014
and summoned the petitioner Alok Gupta to
face trial in the above mentioned crime.
Being
aggrieved
by
the
order
of
cognizance, the petitioner preferred a
petition under Section 482 Cr.P.C. i.e.
Criminal Misc. Case No. 2066 of 2015
(Alok Gupta Versus State of U.P and
Others) for quashing the order of taking
cognizance dated 01.12.2014. This Court
quashed the order dated 01.12.2014 vide
order dated 23.07.2018 and directed the
Chief Judicial Magistrate, Lucknow to pass
the order afresh. The relevant part of the
order of this Court is quoted below:-

"Under such circumstance, I
find that the impugned order suffers from
non-application of mind, therefore, the
same cannot be sustained. Accordingly, I
quash the said order and remit the case to
the file of Chief Judicial Magistrate,
Lucknow with a direction to re-apprise
first information report, charge-sheet and
case diary along with all the papers
attached with the case diary and then
record his satisfaction as to how the
offences mentioned in the charge-sheet
are prima facie made out against the
petitioner then pass the order either
accepting or rejecting the charge-sheet.
The said order must be passed within one
month from the date of production/receipt
of certified copy of this order by either of
the parties. "

4. In compliance of the above order of
this
Court,
learned
Chief
Judicial
Magistrate, Lucknow passed the impugned
order dated 14.08.2018 and summoned the
petitioner.

5. This order has been assailed by the
petitioner mainly on the ground that
learned Chief Judicial Magistrate, Lucknow
has not applied its mind and also violated
the principle of natural justice. It has been
argued by the learned counsel for the
petitioner that in the impugned order
learned Chief Judicial Magistrate, Lucknow
has mentioned that the counsel for the
petitioner
(accused)
was
given
an
opportunity of being heard, however, the
fact so mentioned is incorrect and false as
petitioner neither moved application nor
counsel of the petitioner/accused was heard
before passing the impugned order. This is
in gross violation of principle of natural
justice as the petitioner/accused was not
heard and the order was passed mentioning
that petitioner/accused-applicant was heard.
The petitioner/accused was not heard
despite
of
this
Court's
order
dated
23.07.2018,
hence
the
order
dated
14.08.2018 should be quashed.

6. Contrary to it, learned counsel for
the opposite party no. 2 (complainant) and
learned A.G.A. appearing on behalf of the
State submitted that the impugned order is
perfectly legal order as far as it relates to
taking
cognizance.
The
concerned
Magistrate has mentioned in the order
about all the relevant documents on the
basis of which he has taken cognizance of
the case. The mention of the name of the
petitioner/accused and the fact of hearing
him, written in the order may be wrong due
to typographical mistake or otherwise as
there is similarity in the names and
parentage of parties but that did not cause
2 All. Alok Gupta Vs. State of U.P. & Anr.
179
any prejudice to the petitioner as he had no
right to be heard at that stage, i.e. the stage
of taking cognizance. The petitioner has
adopted all delaying tactics and he has not
come with clean hands before this Court.
Hence, this petition should be rejected.

7. Considered the submissions of both
the sides and perused the material available
on record. As far as taking of cognizance is
concerned, Section 190 of the Code of
Criminal Procedure provides as under:-

"190. Cognizance of offences by
Magistrates.

(1) Subject to the provisions of
this Chapter, any Magistrate of the first
class, and any Magistrate of the second
class specially empowered in this behalf
under
sub-
section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such
facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the second
class to take cognizance under sub- section
(1) of such offences as are within his
competence to inquire into or try."

This section does not provide to
give any opportunity of hearing either to
accused or to informant at the time of
taking cognizance. It is only satisfaction of
the concerned Magistrate, after application
of legal mind on the basis of the material
placed before him is required for the
purpose.

8. In Mahesh Chand And etc Versus
State of Rajasthan and etc, AIR 1986 Raj.
58, the Full Bench of Rajasthan High Court
in this regard answering the question,
"Whether cognizance of offence can be
taken in the absence of the accused?" has
observed as under:-

"We would first take up the
questions which, in our opinion, admit of
simple and straight answers. Let us take up
question 4 which is : Whether cognizance
of an offence can be taken in the absence of
the
accused?
This
question
must
straightway be answered in the affirmative,
and we answer it accordingly. A plain
reading of Section 190, Cr. P.C. will
provide reasons for this opinion. Section
190 deals with cognizance of offences by
Magistrates. It lays down that any
Magistrate of the first class may take
cognizance of any offence (a) upon
receiving a complaint of facts which
constitute such offence; (b) upon a police
report of such facts and (c) upon
information received from any person other
than a police officer, or upon his own
knowledge that such an offence has been
committed. It will be seen that the accused
is nowhere in the picture in the context of
taking cognizance of an offence under
Section 190, Cr. P.C. The Magistrate takes
cognizance of an offence and not against
any particular accused. It may happen, and
indeed does happen quite frequently that,
when a Magistrate takes cognizance of an
offence upon receiving a complaint of facts
which constitute such offence, he may not
even be knowing as to who is the accused
who allegedly committed such offence.

It is only after taking cognizance
of the offence under Section 190(1)(a) Cr.
P.C. that the Magistrate embarks upon the
enquiry under Sections 200 and 202, Cr.
P.C.; and he may as a result thereof
discover as to who is the accused. If he is
able to make such discovery, which in the
180 INDIAN LAW REPORTS ALLAHABAD SERIES
language of the Code means if he is of
opinion that, "there is sufficient ground for
proceeding", it is only then that he is
required under Section 204, to issue
process for the attendance of the accused in
his Court. If the Magistrate is of opinion
that there is no sufficient ground for
proceeding, he has no option but to dismiss
the complaint upon which he had taken
cognizance of the offence before embarking
on such enquiry. Thus, Section 190(1)(a),
read with Sections 200, 202, 203 and 204,
Cr. P.C., leaves no manner of doubt that
cognizance of an offence is taken at a stage
when the accused is nowhere in the picture
before the Magistrate and that therefore
there is no question of taking cognizance of
the offence in the presence of the accused.
In other words, cognizance of an offence is
not just a question of "can be", but it "has
to be" taken in the absence of the accused.

12. Similarly, if the Magistrate
takes cognizance of an offence under
Section 190(1)(a), Cr. P.C., he would quite
often be doing so obviously in the absence
of the accused. We can think of only
exceptional cases where it may be possible
for the Magistrate to take cognizance of the
offence in the presence of the accused. For
example, if the accused commits the offence
in the presence of the Magistrate and the
latter takes cognizance of the offence under
Section 190(1)(c) before the accused leaves
the scene of the crime it may be said that
the Magistrate has taken cognizance of the
offence in the presence of the accused.
Even the presence of the accused in such a
situation would demonstrably show that
such presence is happen-chance and not
the requirement of law.

13. Even in the case of a
Magistrate taking cognizance of the offence
upon a police report under Section
190(1)(b), Cr. P.C., such cognizance has
quite often to be taken in the absence of the
accused if he is not forwarded in custody at
the time of presenting the police report. The
Magistrate would thus first take cognizance
of the offence upon the police report and
thereafter issue process for the attendance
of the accused. "

9. In Bhushan Kumar and Another
Versus State (NCT of Delhi) and Another,
AIR (SC) 1747 (2012), the Hon'ble Apex
Court in this regard has observed as under:

"In
S.K.
Sinha,
Chief
Enforcement
Officer
vs.
Videocon
International Ltd. & Ors., (2008) 2 SCC
492, the expression "cognizance" was
explained by this Court as it merely means
"become aware of" and when used with
reference to a court or a Judge, it connotes
"to take notice of judicially". It indicates
the point when a court or a Magistrate
takes judicial notice of an offence with a
view to initiating proceedings in respect of
such offence said to have been committed
by someone. It is entirely a different thing
from initiation of proceedings; rather it is
the condition precedent to the initiation of
proceedings by the Magistrate or the
Judge. Cognizance is taken of cases and
not of persons.

8) Under Section 190 of the
Code, it is the application of judicial mind
to the averments in the complaint that
constitutes cognizance. At this stage, the
Magistrate has to be satisfied whether there
is sufficient ground for proceeding and not
whether there is sufficient ground for
conviction.
Whether
the
evidence
is
adequate for supporting the conviction can
be determined only at the trial and not at
the stage of enquiry. If there is sufficient
ground for proceeding then the Magistrate
is empowered for issuance of process under
Section 204 of the Code. "
2 All. Vatsala Jaiswal & Ors. Vs. State of U.P. & Ors.
181

10. Thus, it is settled legal position
that at the time of taking cognizance there
is no requirement of providing opportunity
of hearing to either party. Only satisfaction
of the concerned Magistrate is required
after application of legal mind.

11. Perusal of the impugned order dated
14.08.2018 denotes that the Magistrate while
passing the order of cognizance has
mentioned that he has perused the case diary
and the statements of the witnesses recorded
as well as the documents put forward before
him. It clearly reveals that the Magistrate
while passing the order of taking cognizance
has applied its legal mind. No doubt in the
order, it has been mentioned that accusedapplicant Alok Kumar Gupta was heard in
compliance of the order passed by this Court
but in the order of the High Court, there was
no direction that the accused-applicant should
be given an opportunity of hearing before
taking the cognizance as has been argued by
the learned counsel for the petitioner/accused.
As mentioned above that accused-applicant
has no right to be heard at the time of taking
cognizance, so no prejudice has been caused
to the petitioner/accused.

12. It is to be taken note that in this
matter, the first information report was
lodged
in
the
year
2014,
thereafter
Investigating Officer submitted charge-sheet
initially on 01.12.2014 cognizance was taken
and the accused was summoned to face trial
but accused-applicant came to this Court for
quashing the order of taking cognizance on
the ground of non application of mind and
that order was set aside and a fresh order was
passed by the Magistrate, which is impugned
order and that was again challenged mainly
for
the
reason
that
name
of
the
petitioner/accused has been mentioned in the
cognizance order disclosing that he has been
heard while in-fact he was not heard but the
rest of the summoning order discloses that
learned Chief Judicial Magistrate has perused
the material placed before him along with the
charge-sheet. A long period has passed after
lodging the F.I.R. but the matter is still
pending at the initial stage in the Trial Court
and petitioner/accused has not surrendered
before the Court.

13. During argument it has been
disclosed by the learned counsel for the
informant/opposite party no. 2 that the
petitioner/accused
has
moved
an
application before the trial court for
discharge and this fact has been admitted
by the counsel for the petitioner/accused.
There remains the opportunity for the
petitioner/accused to argue or make a
submission that there is no prima facie
material to constitute the offences alleged
against the accused.

14. In the light of the aforesaid
discussions, there is no justification to
interfere under Section 482 Cr.P.C. and to
quash the impugned order dated 14.08.2018
passed by the learned Chief Judicial
Magistrate, Lucknow.

15. This petition under Section 482
Cr.P.C. is, accordingly, dismissed.
----------
(2021)02ILR A181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 11237 of 2020

Vatsala Jaiswal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents