# Dinesh Kumar Gupta v. State of U.P. and another

- **Citation:** (2013) 1 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-16
- **Bench:** Vijay Prakash Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-gupta-v-state-of-u-p-and-another-42532
- **Pages:** 4

## Headnote

Criminal Procedure Code, Section 482cognizance taken without application of
mind-without going through the charge
sheet as well as the case diary-held-such
order can not be sustained-quashedapplication allowed.

Held: Para-8

A perusal of the aforesaid order it is
revealed that the learned Magistrate has
no where mentioned in the order that he
has perused the charge sheet and
material filed in support thereof nor he
disclosed the fact that the materials
were sufficient to proceed with the case.
The
manner
in
which
the
learned
Magistrate
has
passed
the
order
impugned cannot be said that he had
applied his mind to the facts contained in
the charge sheet and other materials
filed in support thereof. Therefore, the
aforesaid order cannot be described as
an order "taking of cognizance of the
offences" disclosed in the charge sheet
against the petitioner,hence the order
dated 3.10.2012 cannot be sustained.
Case Law discussed:
[2012 (76) ACC 103]; 2009 (64) ACC 774
1 All] Dinesh Kumar Gupta V. State of U.P. and another
9

## Text

8 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
of an order by an administrative or quasijudicial authority has practically extinguished
and both are required to pass reasoned
orders."

14. Thus, it is well settled proposition
of law that not only judicial or quasi-judicial
order but even the administrative order
affecting the civil rights of the citizens,
should be reasoned one to cope with the
requirement of Article 14 of the Constitution.
Unreasoned order creates unstability and
distrust in people's mind towards the
administration or the authority who has
passed such order. In democratic polity, there
is no scope to pass an order affecting civil
rights of the citizens which may be
unreasoned. It is constitutional obligation and
right of the citizens to know the reasons in
the decision making process affecting their
right or cause.

15. Accordingly, the writ petition is
partly allowed. A writ in the nature of
certiorari is issued quashing the impugned
order dated 10.1.2012, passed by the Central
Administrative Tribunal in Civil Contempt
Petition No.22/2009 with consequential
benefit. Tribunal is further commanded to
restore
the
Civil
Contempt
Petition
No.22/2009 to its original number and decide
the same afresh. In case any application is
moved to bring on record the successor
officer and case is made out against him,
then Tribunal shall consider such application
in accordance with law.

No order as to costs.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.01.2013

BEFORE
THE HON'BLE VIJAY PRAKASH PATHAK, J.

Application U/S 482 No. - 183 of 2013

Dinesh Kumar Gupta

 ...Applicant
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Rai
Sri Ravindra Nath Rai

Counsel for the Respondents:
A.G.A.

Criminal Procedure Code, Section 482cognizance taken without application of
mind-without going through the charge
sheet as well as the case diary-held-such
order can not be sustained-quashedapplication allowed.

Held: Para-8

A perusal of the aforesaid order it is
revealed that the learned Magistrate has
no where mentioned in the order that he
has perused the charge sheet and
material filed in support thereof nor he
disclosed the fact that the materials
were sufficient to proceed with the case.
The
manner
in
which
the
learned
Magistrate
has
passed
the
order
impugned cannot be said that he had
applied his mind to the facts contained in
the charge sheet and other materials
filed in support thereof. Therefore, the
aforesaid order cannot be described as
an order "taking of cognizance of the
offences" disclosed in the charge sheet
against the petitioner,hence the order
dated 3.10.2012 cannot be sustained.
Case Law discussed:
[2012 (76) ACC 103]; 2009 (64) ACC 774
1 All] Dinesh Kumar Gupta V. State of U.P. and another
9
(Delivered by Hon'ble Vijay Prakash
Pathak, J.)

1. The present petition has been filed
with the prayer to quash the charge sheet
submitted in case Crime No. 554/12(Case
No. 308 of 2012) u/s 498A IPC and 3/4
D.P.Act
P.S.
Karimuddinpur
District
Ghazipur in which cognizance has been
taken by the learned Magistrate vide order
dated 3.10.2012.

2. Heard learned counsel for the
applicant as well as learned AGA for the
State.

3. Learned counsel for the applicant
has mainly contended that the learned
Magistrate has taken cognizance in the case
without perusing the case diary and
applying his mind. It is submitted that
according to the order impugned dated
3.10.2012, the charge sheet was received
from the office of C.O., cognizance taken,
court is vacant. Let the case be registered
and summons be issued against the accused
and the file was sent to prepare the copies. It
is submitted that the learned Magistrate has
not perused the charge sheet and other
materials including case diary of the case.
Hence the order of taking cognizance and
issuing summons is against the legal
procedure. In support of his contention he
placed reliance upon the decision of this
court given in Akash Garg Vs. State of U.P.
and others[2012(76) ACC 103].

4. I have considered the said argument
as well as the decision of this Court given in
Akash Garg Vs. State of U.P. and
others(Supra). In the said decision, this
court has also considered the judgment of
the Apex Court in the case of Fakruddin
Ahmad V. State of Uttaranchal and
another reported in 2009(64) ACC 774.
The Hon'ble Apex Court in the aforesaid
verdict in paragraph 15 has held as under:

 "15. Nevertheless, it is well settled
that before a Magistrate can be said to have
taken cognizance of an offence, it is
imperative that he must have taken notice of
the accusations and applied his mind to the
allegations made in the complaint or in the
police report or the information received
from a source other than a police report, as
the case may be, and the material filed
therewith. It needs little emphasis that it is
only when the Magistrate applies his mind
and is satisfied that the allegations, if
proved, would constitute an offence and
decides to initiate proceedings against the
alleged offender, that it can be positively
stated that he has taken cognizance of the
offence. Cognizance is in regard to the
offence and not the offender."

 It is well settled that the Magistrate is
not bound by the conclusion of the
Investigating Officer. He is competent
under law to form his own independent
opinion on the basis of the materials
collected during the investigation. The
Magistrate may or may not agree with the
conclusion of the Investigating Officer. If
the Investigating Officer submits chargesheet, in that eventuality the Magistrate may
differ from the charge-sheet and refuse to
take cognizance by holding that no case is
made out. In a case where the final report
lis submitted the Magistrate may on perusal
of the materials placed in support of the
final report opine that the conclusion of the
Investigating Officer is not correct and the
offence is made out. In that eventuality, the
Magistrate may reject the final report and
take cognizance of the offence.

5. In the aforesaid decision Akash
Garg Vs. State of U.P. ( Supra )the
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
following principle has been laid down in
para 6 and 12 has held as under:

"6- It is well settled that the Magistrate
is not bound by the conclusion of the
Investigating Officer. He is competent
under law to form his own independent
opinion on the basis of the materials
collected during the investigation. The
Magistrate may or may not agree with the
conclusion of the Investigating Officer. If
the Investigating Officer submits chargesheet, in that eventuality the Magistrate may
differ from the charge-sheet and refuse to
take cognizance by holding that no case is
made out. In a case where the final report
lis submitted the Magistrate may on perusal
of the materials placed in support of the
final report opine that the conclusion of the
Investigating Officer is not correct and the
offence is made out. In that eventuality, the
Magistrate may reject the final report and
take cognizance of the offence.

 "12. It is also well settled that at the
stage of taking cognizance of an offence,
the Magistrate is not required to examine
thoroughly the merits and demerits of the
case and to record a final verdict. At that
stage he is not required to record even
reasons, as expression of reasons in support
of the cognizance may result in causing
prejudice
to
the
rights
of
the
poarties(complainant or accused) and may
also in due course result in prejudicing the
trial. However, the order of the Magistrate
must reflect that he has applied his mind to
the facts of the case. In other words at the
stage of taking cognizance what is required
from the Magistrate is to apply his mind to
the facts of the case including the evidence
collected during the investigation and to see
whether
or
not
there
is
sufficient
ground(prima facie case) to proceed with
the case. The law does not require the
Magistrate to record reasons for taking
cognizance of an offence."

6. The present case needs to be
examined in the light of aforesaid settled
principles given by Hon'ble Apex Court in
the case of Fakruddin Vs. State of
Uttaranchal and another(Supra) and this
court in the case Akash Garg Versus State
of U.P.(Supra).

7. The cognizance order dated
3.10.2012 in the present case has been
passed in the following manner:
^^3-10-12 vkt ;g vkjksi i= lh0vks0 dk;kZy;
ls izkIr gqvkA izlaKku fy;k tkrk gSA U;k0
fjDr gSA
vkns'k
ntZ jftLVj gksA vfHk0x.k ds fo:} lEeu
tkjh gksA
i=koyh fnukad 5&1&13 dks okLrs udy ds
is'k gksA ewy dkxtkr udy esa Hkstk tk;sA
g0 ts0,e0 f}rh;**

8. A perusal of the aforesaid order it is
revealed that the learned Magistrate has no
where mentioned in the order that he has
perused the charge sheet and material filed
in support thereof nor he disclosed the fact
that the materials were sufficient to proceed
with the case. The manner in which the
learned Magistrate has passed the order
impugned cannot be said that he had
applied his mind to the facts contained in
the charge sheet and other materials filed in
support thereof. Therefore, the aforesaid
order cannot be described as an order
"taking of cognizance of the offences"
disclosed in the charge sheet against the
1 All] Bhupendra Singh V. State of U.P. and another
11
petitioner,hence the order dated 3.10.2012
cannot be sustained.

9. In view of the aforesaid
considerations this petition is allowed. The
order dated 3.10.2012 is hereby set aside.
The learned Magistrate is directed to
reconsider the charge sheet in the light of
the relevant material and observations made
above and pass appropriate order afresh on
the charge sheet in accordance with law.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.01.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Criminal Misc. Case No. 232 of 2011

Bhupendra Singh

 ...Petitioner
Versus
State of U.P. and another

 ...Opposite Parties

Criminal Procedure Code-Section 401(2)-
Right of hearing-against rejection of
petition under section 156(3)-Criminal
Revision allowed without opportunity of
hearing
taking
view
that
as
accused/applicants not summoned-he
has no right to heard-held-the view
taken by revisional court is contrary to
mandate
of
Section
401(2)-order
without jurisdiction-even in case of
dismissal of complaint-proposed accused
is necessary party-order set-a-side-with
direction to decide the matter as fresh
after hearing the proposed accused.

Held: Para-11

The Apex Court held that even at pre
cognizance
stage
when
learned
Magistrate declined to take any action
under
section
156
(3)
Cr.P.C.
and
proceeded to treat the petition as
complaint case and directed examination
of the complainant and his witness, it
will
amount
to
closing
of
police
investigation and if set aside in revision
and the Magistrate was directed to
reconsider the matter in light of section
156
(3)
Cr.P.C.
without
giving
an
opportunity of being heard to the person
against whom FIR was intended to be
lodged, it will amount to violation of
mandatory provisions contained in sub
section 2 of section 401 Cr.P.C.
Case Law discussed:
(2009) 1 SCC (Cri) 801; (2008) 2 SCC 409

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Heard learned counsel for the
petitioner and the learned AGA.

2.

Learned
counsel
for
the
respondent no. 2 is not present despite
filing power on his behalf, whereas he
has filed counter affidavit, which is on
record.

3. In this petition under section 482
Cr.P.C.
the
question
raised
for
consideration is whether the court of
revision may set aside the order passed
by the learned Magistrate rejecting the
petition under section 156(3) of Code of
Criminal Procedure (for short Cr.P.C)
without giving opportunity of being
heard to the proposed accused and the
FIR sought to be lodged in pursuance of
section 156(3) Cr.P.C.

4. While deciding this petition the
entire facts need not be discussed in view
of the limited controversy involved in
this case. The relevant facts necessary to
decide this petition are as follows:-

5. Respondent no. 2 Ajit Singh
moved the application under section
156(3) Cr.P.C. against the petitioner for
taking electricity connection on the basis