# Gulam Rabbani @ Sonu v. State of U.P. & Anr

- **Citation:** Application U/S 482 No. 42444 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-28
- **Case number:** Application U/S 482 No. 42444 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulam-rabbani-sonu-v-state-of-u-p-anr-45192
- **Pages:** 6

## Headnote

Criminal law-Cognizance order-Once the
Magistrate
takes
cognizance-either
without discussing reasons-it shall be
presumed-he is satisfied on the basis of
materialavailable
before
himdetail
discussion
not
required-
Application
disposed. (E-9)

Cases cited:

## Text

1740 INDIAN LAW REPORTS ALLAHABAD SERIES
placed in abeyance, then a chaotic situation
would arise and accused would manage a
case pending under various other acts
merely on the ground of pendency of case
under Gangster Act.

19. In the present case Session Trial
against the accused persons is pending
since 2005 and they are just trying to get
delayed the trial with the help of Section 12
of the Gangsters Act.

20.

After
considering
all
the
submissions and the law laid down by this
Court, this Court is of the opinion that the
trial against the accused persons cannot be
kept in abeyance till conclusion of the trial
under the Gangsters Act. The only
consideration for this Court is that there
should not be any collusion of date so that
cases under the Gangsters Act are not
delayed.

21. In the case on hand, the report was
lodged in the year 2005. The trial is
pending since 2005 and the trial is about to
conclude. The sole purpose of filing of this
application is to get the trial delayed, which
this Court will not permit.

22. The prayer claimed by the
applicants is devoid of merits and is liable
to be rejected and hence, it is accordingly
dismissed.
----------

(2020)03-05ILR A1740
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 42444 of 2019

Gulam Rabbani @ Sonu ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ronak Chaturvedi

Counsel for the Opposite Parties:
A.G.A.

Criminal law-Cognizance order-Once the
Magistrate
takes
cognizance-either
without discussing reasons-it shall be
presumed-he is satisfied on the basis of
materialavailable
before
himdetail
discussion
not
required-
Application
disposed. (E-9)

Cases cited:

1. Shakuntala Devi Vs. St. of U.P. & ors.,
Application u/s 482 Cr.P.C. No.11232 of 2018
decided on 25.07.2018

2. Sunil Bharti Mittal Vs. C.B.I. reported in
(2015) 4 SCC 609

3. Fakhruddin Ahmad Vs. St. of Uttaranchal
reported in (2008) 17 SCC 157

4. Kanti Bhadra Shah & anr. Vs. St. of W.B.
(2000) 1 SCC 722

5. Bhushan Kumar & anr. Vs. St. (NCT of Delhi)
& anr., (2012) 5 SCC 424

6. U.P. Pollution Control Board Vs. Mohan
Meakins Ltd. & ors. (2000) 3 SCC 745

7. Amrawati & anr. Vs. St. of U.P. 2004 (57)
ALR 290

8. Lal Kamlendra Pratap Singh Vs. St. of U.P.
2009 (3) ADJ 322 (SC)

(Delivered by Hon'ble Mrs.Manju Rani
Chauhan , J.)

1. The present 482 Cr.P.C. application
has been filed to quash the charge sheet
3-5 All. Gulam Rabbani @ Sonu Vs. State of U.P. & Anr.
1741
dated 26.03.2019 as well as cognizance and
summoning order dated 12.04.2019 passed
by
learned
Special
Chief
Judicial
Magistrate, Allahabad in Criminal Case
No.619 of 2019 (State Vs. Zulfekar Ali and
others), under Sections 147, 148, 308, 452,
323, 504, 325 I.P.C., Police Station
Mauaima, District Prayagraj, arising out of
Case Crime No.272 of 2018, pending in the
Court of Special Chief Judicial Magistrate,
Allahabad.

2. Heard Sri Ronak Chaturvedi, learned
counsel for the applicant, Sri Amit Singh
Chauhan, learned A.G.A. and perused the
record.

3. It has been contended by learned
counsel for the applicant that the order dated
12.04.2019 contained in Annexure 2 to the
application by which cognizance of the offence
in the instant matter has been taken suffers from
judicial non application of mind. It has further
been submitted that the cognizance and
summoning order have been passed in a
mechanical manner, order being without
reasons is bad in the eyes of laws as it reflects
non application of mind. It has also been argued
on behalf of the applicant that the perusal of
record of investigation goes to show that the
entire allegations made by opposite party no.2
are false and incorrect and the applicant has
falsely been implicated in order to exert
pressure upon him, hence entire proceeding is
also liable to be quashed. Learned counsel for
the applicant has argued that the impugned
order dated 12.04.2019 whereby the court
below has taken cognizance and has issued
summons to the applicant, also reflects non
application of mind as it is a single line order,
not mentioning the offences or the name of the
accused.

4. In support of his contention, learned
counsel for the applicant has relied upon
Application u/s 482 Cr.P.C. No.11232 of
2018 (Shakuntala Devi Vs. State of U.P. &
others), decided on 25.07.2018, Sunil Bharti
Mittal Vs. Central Bureau of Investigation
reported in (2015) 4 SCC 609; Fakhruddin
Ahmad Vs. State of Uttaranchal reported in
(2008) 17 SCC 157.

5. On the other hand, learned A.G.A.
has vehemently rebutted the contentions of
the applicant's side by submitting that the
order
taking
cognizance
and
issuing
summons against accused is not required to
have reasons, much more so when such
order is passed upon a charge sheet filed by
the Investigating Officer under Section 173
(2) of the Code of Criminal Procedure
which itself contains the entire material
collected by Investigating Officer, and
hence, the impugned order is not amenable
to challenge only on this score. According
to learned A.G.A. the merit of the order is
to be tested on the basis of the contents and
allegations of FIR and material available on
case diary or on the basis of any other
requirement of law necessary to be fulfilled
in order to pass order of cognizance and
issuing summons against accused.

6. Learned A.G.A. has relied upon
several judgments in support of his
contention.

7. The Apex Court in the case of
Kanti Bhadra Shah and another Vs.
State of West Bengal (2000) 1 SCC 722 in
para nos.11 and 12 has observed as under :-

"11. Even in cases instituted
otherwise than on police report the
Magistrate is required to write an order
showing the reasons only if he is to
discharge the accused. This is clear from
Section 245. As per the first sub-section of
Section 245, if a magistrate, after taking all
1742 INDIAN LAW REPORTS ALLAHABAD SERIES
the evidence considers that no case against
the accused has been made out which if
unrebutted would warrant his conviction,
he shall discharge the accused. As per subsection (2) the Magistrate is empowered to
discharge the accused at any previous
stage of the case if he considers the charge
to be groundless. Under both sub-sections
he is obliged to record his reasons for
doing so. In this context it is pertinent to
point out that even in a trial before a court
of session, the judge is required to record
reasons only if he decides to discharge the
accused. (vide Section 227 of the Code).
But if he is to frame the charge he may do
so without recording his reasons for
showing why he framed the charge.

12.
If
there
is
no
legal
requirement that the trial court should
write an order showing the reasons for
framing a charge, why should the already
burdened trial Courts be further burdened
with such an extra work. The time has
reached to adopt all possible measures to
expedite the the court procedures and to
chalk out measures to avert all roadblocks
causing avoidable delays. If a Magistrate is
to write detailed orders at different stages
merely because the counsel would address
arguments at all stages, the snail paced
progress of proceedings in trial courts
would further be slowed down. We are
coming across interlocutory orders of
Magistrates and Sessions Judges running
into several pages. We can appreciate if
such a detailed order has been passed for
culminating the proceedings before them.
But it is quite unnecessary to write detailed
orders at other stages, such as issuing
process, remanding the accused to custody,
framing of charges, passing over to next
stages in the trial. It is a salutary guideline
that when orders rejecting or granting bail
are passed, the Court should avoid
expressing one way or other on contentious
issues, except in cases such as those falling
within Section 37 of the Narcotic Drugs
and Psychotropic Substances Act, 1985."

8. The Apex Court in the case of
Bhushan Kumar and another Vs. State
(NCT of Delhi) and another, (2012) 5
SCC 424 has referred the case of Kanti
Bhadra Shah's case as well as U.P.
Pollution Control Board Vs. Mohan
Meakins Ltd. & others (2000) 3 SCC 745
and observed in paragraph nos.12, 13, 14,
19 and 20, which is as follows :-

(12) A "summons" is a process
issued by a Court calling upon a person to
appear before a Magistrate. It is used for
the purpose of notifying an individual of his
legal obligation to appear before the
Magistrate as a response to violation of
law. In other words, the summons will
announce to the person to whom it is
directed that a legal proceeding has been
started against that person and the date
and time on which the person must appear
in Court. A person who is summoned is
legally bound to appear before the Court
on the given date and time. Willful
disobedience is liable to be punished under
Section 174 IPC. It is a ground for
contempt of court.

(13) S ection 204 of the Code
does not mandate the Magistrate to
explicitly state the reasons for issuance of
summons. It clearly states that if in the
opinion of a Magistrate taking cognizance
of an offence, there is sufficient ground for
proceeding, then the summons may be
issued.
This
section
mandates
the
Magistrate to form an opinion as to
whether there exists a sufficient ground for
summons to be issued but it is nowhere
mentioned in the section that the explicit
3-5 All. Gulam Rabbani @ Sonu Vs. State of U.P. & Anr.
1743
narration of the same is mandatory,
meaning thereby that it is not a prerequisite for deciding the validity of the
summons issued.

(14) Time and again it has been
stated by this Court that the summoning
order under Section 204 of the Code
requires no explicit reasons to be stated
because it is imperative that the Magistrate
must have taken notice of the accusations
and applied his mind to the allegations
made in the police report and the materials
filed therewith.

(15) .................................

(16) ................................

(17) ................................

(18) ................................

(19) This being the settled legal
position,
the
order
passed
by
the
Magistrate could not be faulted with only
on the ground that the summoning order
was not a reasoned order.

(20) It is inherent in Section 251
of the Code that when an accused appears
before the trial Court pursuant to summons
issued under Section 204 of the Code in a
summons trial case, it is the bounden duty
of the trial Court to carefully go through
the allegations made in the charge sheet or
complaint and consider the evidence to
come to a conclusion whether or not,
commission of any offence is disclosed and
if the answer is in the affirmative, the
Magistrate shall explain the substance of
the accusation to the accused and ask him
whether he pleads guilty otherwise, he is
bound to discharge the accused as per
Section 239 of the Code."

9. The case of Fakhruddin (supra)
upon which the learned counsel for the
applicant has placed reliance is of no help
to him as the Apex Court in the case of
Fakhruddin (supra) was examining the
validity of the order passed by Uttaranchal
High Court by which it had declined to
quash the charge sheet on the ground that it
had no power to look into the documents
and papers which were filed along with
charge sheet for the purpose of considering
the prayer for quashing of prosecution, and
the Apex Court, while disagreeing with the
reasons spelt out by the High Court for
refusing to quash the charge sheet set aside
the order of the Uttaranchal High Court and
remitted the matter back to the High Court
for deciding the prayer for quashing of
prosecution afresh in accordance with law.

10. The other case, i.e. Shakuntala
Devi (supra) which has been relied upon
by learned counsel for the applicant is not
applicable in the present case as in that case
earlier a detailed order was filed containing
reasons not to accept the charge sheet as
filed. Certain specific observations were
made in that order to take notice of
contradictions in the statements recorded
under Section 161 Cr.P.C. Then, prima
facie, it was observed that the investigation
had not been properly conducted. A hope
was also expressed that if a proper
investigation were conducted, it may be
possible to collect essential evidence.
Consequently, further investigation was
directed, after which cognizance order was
passed.

11. In view of the discussions made
hereinabove, I think that there is no legal
requirement that the trial court should write
the order showing reasons for taking
cognizance or for framing of charge after
going through the several decisions of
1744 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble the Apex Court as well as this
Court on subject in issue, I am of the view
that once the Magistrate takes cognizance
of an offence either without discussing
what are the reasons behind it, it shall be
presumed that on the basis of material
available before him he is satisfied that
there is sufficient material for taking
cognizance and if he is satisfied with those
materials for taking cognizance, the detail
discussion of those materials by the learned
Magistrate is not required. Further once he
issues process, even without writing word
"cognizance is taken", it is presumed that
he has taken cognizance, the writing of
word
"cognizance
is
taken"
is
not
necessary. The reason is that by issuance of
process he proceeds with the case and the
accused who has been summoned for trial
have sufficient opportunity to defend
himself at the appropriate stage provided in
code.
In
response
of
issuance
of
process/summons it is not open for the
accused to challenge the summoning order
on the ground that no cognizance has been
taken or no satisfaction has been shown or
there is no detail discussion of the material
available rather he has to follow the next
step of the process.

12. The prayer for quashing the order
dated 12.04.2019 is refused as I do not see
any abuse of the court's process either.

13. It is argued that the co-accused
Shahjad Ali @ Babloo and others have
been granted relief of bail by a co-ordinate
Bench of this Court vide order dated
01.11.2019 passed in Application u/s 482
No.39127 of 2019. The same is reproduced
hereinunder :-

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

The present 482 Cr.P.C. application
has been filed to quash the charge sheet dated
26.3.2019 as well as the cognizance order
dated 18.4.2019 and the entire proceedings of
Criminal Case No. 619 of 2019, arising out of
Case Crime No. 0272 of 2018, under Sections-
147, 148, 308, 452, 323, 325, 504 I.P.C., Police
Station- Mau Aima , District- Prayagraj,
pending in the court of Special Chief Judicial
Magistrate, Allahabad.

The contention of learned counsel
for the applicants is that no offence against the
applicants is disclosed and the present
prosecution has been instituted with a malafide
intention
for
the
purpose
of
causing
harassment. He pointed out certain documents
and statements in support of his contention. At
this stage, the argument raised by learned
counsel for the applicants involves factual
disputes and appraisal of evidence.

From the perusal of the material
on record and looking into the facts of the
case at this stage it cannot be said that no
offence is made out against the applicants
at this stage. All the submissions made at
the bar, relate to the disputed questions of
fact, which cannot be adjudicated upon by
this Court under Section 482 Cr.P.C. At
this stage only prima facie case is to be
seen in the light of the law laid down by
Supreme Court in cases of R.P. Kapur Vs.
State of Punjab, A.I.R. 1960 S.C. 866, State
of Haryana Vs. Bhajan Lal, 1992 SCC
(Cr.) 426, State of Bihar Vs. P.P.Sharma,
1992 SCC (Cr.) 192 and lastly Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283.

The prayer for quashing the
entire proceeding of the aforesaid case is
refused.
3-5 All. Raghunath Vs. State of U.P. & Anr.
1745

However,
in
view
of
the
entirety of facts and circumstances of
the case, it is directed that in case the
applicants
appear
and
surrender
before the court below within 60 days
from today and apply for bail, their
prayer for bail shall be considered and
decided in view of the settled law laid
by this Court in the case of Amrawati
and another Vs. State of U.P. reported
in 2004 (57) ALR 290 as well as
judgement passed by Hon'ble Apex
Court reported in 2009 (3) ADJ 322
(SC) Lal Kamlendra Pratap Singh Vs.
State of U.P.

With the aforesaid directions,
this application is finally disposed of.

Till then no coercive action
shall be taken against the applicants.

However,
in
case,
the
applicants do not appears before the
court
below
within
the
aforesaid
period, coercive action shall be taken
against them.

It is made clear that the
applicants will not be granted any
further
time
by
this
Court
for
surrendering before the court below as
directed above."

14. However, it is observed that if the
bail has not been obtained as yet, the
accused may appear before the court below
and apply for bail within two months from
today. The court below shall make an
endeavour to decide the bail application on
the same day, if possible, keeping in view
the observations made by the Court in the
Full Bench decision of Amrawati and
another Vs. State of U.P. 2004 (57) ALR
290 and also in view of the decision given
by the Hon'ble Supreme Court in the case
of Lal Kamlendra Pratap Singh Vs. State
of U.P. 2009 (3) ADJ 322 (SC).

15. In the aforesaid period or till the
date of appearance of the accused in the
court below, whichever is earlier, no
coercive measures shall be taken or given
effect to.

16. With the aforesaid observations,
this application is finally disposed off.
----------
(2020)03-05ILR A1745
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Application U/S 482 No. 43298 of 2019

Raghunath ...Applicant
Versus
State of U.P.& Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vinay Kumar, Sri Sanjeev Kumar
Sharma

Counsel for the Opposite Parties:
A.G.A.

Criminal law-Code of Criminal Procedure -
Section 311-Application to recall of PW-2
for cross-examination rejected-for three
years prosecution did not adduced any
evidence-after
three
years
statement
recorded and on same day opportunity to
cross examination closed due to non
pressence
of
lawyer-impugned
order
quashed-Application allowed. (E-9)

Held, Considering the above, I am of the view
that if the defence is not given proper
opportunity to cross-examine PW-2-prosecutrix,
who is the victim of the case, it will cause a
serious prejudice to defence case as her