# Kaushal Kumar Gupta v. State of U.P. & Anr

- **Citation:** Application U/S 482 Cr.P.C. No. 3821 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Application U/S 482 Cr.P.C. No. 3821 of 2020
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushal-kumar-gupta-v-state-of-u-p-anr-46377
- **Pages:** 4

## Headnote

(A) Criminal law - Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal Code,
1860 - Sections 323, 504, 506, 354, 354A,
354B IPC - taking cognizance - when the
Magistrate applies his judicial mind to the
facts mentioned in a complaint or to a
police report or upon information received
from any person regarding an offence -
summoning order has to be passed after
considering relevant material and showing
appropriate reasons. (Para- 11,14)

Summoning order passed in a cyclostyled
proforma and only the case number, name of
accused and Sections of IPC were written by
pen and rest of the contents are on a printed
proforma order. (Para-14)

HELD:- It is apparent that there is nothing to
indicate that the impugned order has been
passed after applying judicial mind and thus, the
impugned summoning order is not sustainable
and, accordingly, the impugned summoning
order is, hereby, set aside and learned trial
court is directed to pass order afresh, in
accordance with law. (Para-15)

Application u/s 482 Cr.P.C. disposed of
finally. (E-7)

List Of Cases Cited:-

## Text

1622 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In view of the aforesaid, the
orders dated 30.10.2019 passed by Special
Judge, S.C./S.T (Prevention of Atrocities)
Act,
Jaunpur
cannot
be
sustained.
Accordingly, the present criminal misc.
application succeeds and is allowed at the
admission stage without issuing notice to
the prospective accused persons as they
have no right to be heard at pre-cognizance
stage. The order dated 30.10.2019 passed
by the Special Judge, S.C./S.T (Prevention
of
Atrocities)
Act,
Jaunpur
are
consequently set aside.

15. The concerned court below i.e.
Special Judge, S.C./S.T (Prevention of
Atrocities) Act, Jaunpur is directed to
exercise his discretionary power and decide
afresh the application under section 156(3)
Cr.P.C. moved by the applicant and to pass
appropriate order, in accordance with law,
keeping in view the observations made by
this court, within a period of one month
from the date of production of a certified
copy of this order.

16. With the aforesaid directions, the
present application is allowed.
----------
(2020)03-05ILR A1622
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application U/S 482 Cr.P.C. No. 3821 of 2020

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

Counsel for the Applicant:
Sri Mohammad Waseem

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

(A) Criminal law - Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal Code,
1860 - Sections 323, 504, 506, 354, 354A,
354B IPC - taking cognizance - when the
Magistrate applies his judicial mind to the
facts mentioned in a complaint or to a
police report or upon information received
from any person regarding an offence -
summoning order has to be passed after
considering relevant material and showing
appropriate reasons. (Para- 11,14)

Summoning order passed in a cyclostyled
proforma and only the case number, name of
accused and Sections of IPC were written by
pen and rest of the contents are on a printed
proforma order. (Para-14)

HELD:- It is apparent that there is nothing to
indicate that the impugned order has been
passed after applying judicial mind and thus, the
impugned summoning order is not sustainable
and, accordingly, the impugned summoning
order is, hereby, set aside and learned trial
court is directed to pass order afresh, in
accordance with law. (Para-15)

Application u/s 482 Cr.P.C. disposed of
finally. (E-7)

List Of Cases Cited:-

1. Akash Garg Vs. St. of U.P., 2011 (11) ADJ
849

2. Ankit vs. St. of U.P. & anr., JIC 2010 (1) 432

(Delivered by Hon'ble Suresh Kumar Gupta, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State.

2. This application under Section 482,
Cr.P.C. has been filed for quashing the
entire criminal proceedings of case No.
1505 of 2019 (State vs. Kaushal Kumar
3-5 All. Kaushal Kumar Gupta Vs. State of U.P. & Anr.
1623
Gupta & others), arising out of case crime
No. 304 of 2018, under Sections 323, 504,
506, 354, 354A, 354B IPC, Police Station-
Adampur, District Varanasi, as well as
charge
sheet
dated
02.05.2019
and
cognizance
order
dated
07.11.2019,
pending in the court of Additional Chief
Judicial Magistrate, Court No. 7, District
Varanasi.

3. The contention of the counsel for
the applicants is that the applicants have
been falsely implicated in this case and on
the basis of false and frivolous allegation,
the present FIR was lodged against the
applicant. He further submitted that there is
dispute between opposite party no. 2 and
the applicant regarding residential house.
He further submitted that no offence
against the applicant is disclosed and the
present prosecution has been instituted with
a malafide intention for the purposes of
harassment,
the
Investigating
officer
without
collecting
sufficient
evidence
submitted charge sheet under section 354
IPC against the applicant. He further
submitted that learned Magistrate has not
applied his judicial mind while in passing
the cognizance order as the order has been
made on a printed proforma, in which the
name of the accused has been filled up by
hand. This Court in the case of Ankit vs.
State of U.P. and another, JIC 2010 (1)
432, has held that cognizance order being
on a printed proforma is clearly without
application of judicial mind and henc is
liable to quash on this ground alone.

4. Learned counsel for the applicant also
relied upon paragraph Nos. 6 and 12 of the
judgement passed by Hon'ble Allahabad High
Court in the case of Akash Garg Vs. State of
U.P. reported in [2011 (11) ADJ 849].

"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
charge sheet, 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 is
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 parties (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."
1624 INDIAN LAW REPORTS ALLAHABAD SERIES

5. What is meant by 'taking
cognizance' in regard to an offence by a
competent Magistrate is not defined or
described
in
the
Code
of
Criminal
Procedure, 1973 (Cr.P.C.) or any other act.
However the term has acquired a definite
connotation through well settled judicial
pronouncements.

6. The term 'taking cognizance'
actually means 'become aware of', but in
reference to a Court or a Judge, it means 'to
take notice of judicially'. The term has no
mystic significance in criminal law. In
practice 'taking cognizance' means taking
notice of an offence for initiation of
proceedings under Section 190 Cr.P.C.

7. 'Cognizance' refers to the point when
the court first takes judicial notice of an offence
by not only applying its mind to the contents of
the complaint/police report, but also proceeding
further as provided further in Chapter XIV of
the Cr.P.C.

8. Taking cognizance includes either
taking steps to see whether there is basis for
initiating a judicial proceeding or initiating a
judicial proceeding against an offender by the
Magistrate.

9. Ordinarily, a citizen can initiate
criminal proceedings against an offence by two
means. He may either lodge an FIR before the
Police Officer (Station House Officer) if the
offence is a cognizable one, or he may lodge
complaint
before
a
competent
Judicial
Magistrate irrespective of whether the offence is
cognizable or non-cognizable. Any Magistrate
of the first class and the duly empowered
second class Magistrate may take cognizance of
any offence for further proceedings.

10. As per Section 190(1) an empowered
Magistrate may take cognizance of any offence-

a). Upon receiving a complaint of
facts which constitute such an 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 an offence has
been committed."

11. Thus the cognizance is taken when
the Magistrate applies his judicial mind to the
facts mentioned in a complaint or to a police
report or upon information received from any
person regarding an offence.

12. The issuance of process by the
court occurs at a subsequent stage duly
after considering the materials placed
before it. It happens when the Magistrate
decides to proceed against the offender
whom a prima facie case is clearly made
out. Taking cognizance of an offence is not
equivalent to issuance of process: issuance
of process takes place only after taking
cognizance of the offence. When a
Magistrate applies his mind for issue of
process, he must be held to have taken
cognizance of the offences the complaint
put forth.

13. The cognizance and summoning
order passed by learned Magistrate dated
07.11.2019 is read as under:-

"vkt vkjksi i= izkIr gqvkA leLr
vfHk;kstu izi=ksa dk voyksdu fd;kA laKku
fy;k x;k ntZ jftLVj gksA i=koyh esa ewy
vfHk;kstu izi= 'kkfey fef'ky fd;k x;kA
vfHk;qDr tfj;s lEeu ryc gks i=koyh okLrs
gkftjh eqfYte fnukad 28-01-20 dks is'k gksA"

14. Perusal of the record shows that
impugned
summoning
order
dated
07.11.2019
has
been
passed
in
a
cyclostyled proforma and only the case
3-5 All. Smt. Pooja Vs. State of U.P.
1625
number, name of accused and Sections of
IPC were written by pen and rest of the
contents are on a printed proforma order. It
is well settled that summoning order has to
be
passed
after
considering
relevant
material and showing appropriate reasons.

15. Considering the above-stated facts
and law as referred above, it is apparent
that there is nothing to indicate that the said
impugned order has been passed after
applying judicial mind and thus, the
impugned
summoning
order
dated
07.11.2019
is
not
sustainable
and,
accordingly, the impugned summoning
order dated 07.11.2019 is, hereby, set aside
and learned trial court is directed to pass
order afresh, in accordance with law.

16. With the aforesaid observations,
the instant application is disposed of
finally.
----------
(2020)03-05ILR A1625
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 4285 of 2012

Smt. Pooja ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Shyam Babu Vaish, Sri J.B. Kesharwani,
Sri Rama Shanker Mishra

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

(A) Criminal Law-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Section 227 -
Discharge - Section 228 Cr.P.C. -
Framing of charge - Indian Penal
Code, 1860 - Sections 302 and 201
I.P.C.
-
exercise
of
inherent
jurisdiction under Section 482 Cr.P.C.
is within the limits. (Para-10)

Statement of accused, made to police, while in
custody, is not admissible - statement of
accomplices and statements in close proximity
of time and their conduct are to be seen at the
time of making of judicial decision making -
learned trial court concluded for framing of
charge for offence of conspiracy for murder,
followed by murder of neighbour, against
applicant and this was on the basis of evidence,
on the basis of which charge sheet was filed
and cognizance was taken by Magistrate - there
was
sufficient
reason
and
evidence
on
record.(Para-6)

HELD:- Trial court at the stage of disposal of
application under Section 227, 228 Cr.P.C. need
not to make meticulous analysis of evidence on
record. Rather a prima facie case is to be seen
as to whether there exist prima facie case for
framing of charge and prima facie case is to be
decided in view of guidelines given by apex
court in Sajjan Kumar Vs. Central Bureau of
Investigation, JT 2010 (10) SC 413. (Para-5)

Application u/s 482 Cr.P.C. dismissed.
(E-7)

List Of Cases Cited:-

1. Sajjan Kumar Vs. C.B.I., JT 2010 (10) SC 413

2. Palwinder Singh Vs. Balwinder Singh & ors.,
(2008) 14 Supreme Court Cases 504

3. Shoraj Singh Ahlawat & Ors Vs St. Of U.P. &
anr., AIR 2013 Supreme Court 52.

4. St. of A.P. Vs Gaurishetty Mahesh, JT 2010
(6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844

5. Hamida Vs Rashid, (2008) 1 SCC 474