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

- **Citation:** (2020) 11 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-11
- **Case number:** Application U/S 482 No. 41617 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishnu-kumar-gupta-anr-v-state-of-u-p-anr-45371
- **Pages:** 7

## Headnote

(A) Criminal law - Indian Penal Code,
1860 - Sections 420, 467, 468, 471, 406 -
Code of criminal procedure, 1973 -
Section 204 - Issue of process - Section
204 of the Code does not mandate the
Magistrate to explicitly state the reasons
for issuance of summons -- summoning in
criminal case is a serious matter and the
court
below
without
dwelling
into
material and visualizing the case on the
touch stone of probability should not
summon accused person to face criminal
trial .Para - 4,11

(B) Criminal law - Code of criminal
procedure, 1973 - Magistrate not required
to pass detailed reasoned order at the
time of taking cognizance on the charge
sheet - does not mean that order of
taking cognizance can be passed by filling
up the blanks on printed proforma - Court
required to apply judicial mind - even the
order of taking cognizance cannot be
passed in mechanical manner - impugned
order liable to be quashed . Para - 18

F.I.R. lodged with false and frivolous allegations
by
Block
Education
-
Additional
District
Magistrate submitted enquiry report - applicants
were indulged in raising fake bills with regard to
the vehicle services - in connivance with the
District Basic Education Officer, Hathras - F.I.R.
was lodged on the basis of the directions issued
by
the
District
Magistrate
-
applicants
summoned through a printed order - without
recording any reasons in support of satisfaction
for taking cognizance against the applicants and
merely the case, Section, date of the order and
date of the summon have been filled. Para -
3,4,5
11 All. Vishnu Kumar Gupta & Anr. Vs. State of U.P. & Anr.
113
HELD:- The conduct of the judicial officers
concerned
in
passing
orders
on
printed
proforma by filling up the blanks without
application of judicial mind is objectionable and
deserves to be deprecated - summoning of an
accused in a criminal case is a serious matter
and the order must reflect that Magistrate had
applied his mind to the facts as well as law
applicable thereto.Para - 19

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

List of Cases Cited:-

## Text

112 INDIAN LAW REPORTS ALLAHABAD SERIES
allegations made against the accused, is
being purposely avoided by the Court for
the reason, lest the same might cause any
prejudice to either side during trial. But it
shall suffice to observe that the perusal of
the F.I.R. and the material collected by the
Investigating Officer on the basis of which
the charge sheet has been submitted makes
out a prima facie case against the accused
at this stage and there appear to be
sufficient ground for proceeding against the
accused. I do not find any justification to
quash the charge sheet or the proceedings
against the applicants arising out of them as
the case does not fall in any of the
categories recognized by the Apex Court
which may justify their quashing.

13. The prayer for quashing the same
is refused as I do not see any abuse of the
court's process either.

14. The application therefore cannot
be allowed and stands dismissed.

15. In the last, before closing on, this
Court wants to bring on record its
unreserved admiration for the brilliant
assistance that has been rendered by
learned A.G.A. Shri Rupak Chaubey, who
during the course of argument has not only
displayed complete mastery on facts but
has also shown an equally commendable
understanding of law. His performance has
been exemplary and worth emulation by his
fellow peers.
----------
(2020)11ILR A112
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.
Application U/S 482 No. 41617 of 2019

Vishnu Kumar Gupta & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anshul Kumar Kumar Singhal

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

(A) Criminal law - Indian Penal Code,
1860 - Sections 420, 467, 468, 471, 406 -
Code of criminal procedure, 1973 -
Section 204 - Issue of process - Section
204 of the Code does not mandate the
Magistrate to explicitly state the reasons
for issuance of summons -- summoning in
criminal case is a serious matter and the
court
below
without
dwelling
into
material and visualizing the case on the
touch stone of probability should not
summon accused person to face criminal
trial .Para - 4,11

(B) Criminal law - Code of criminal
procedure, 1973 - Magistrate not required
to pass detailed reasoned order at the
time of taking cognizance on the charge
sheet - does not mean that order of
taking cognizance can be passed by filling
up the blanks on printed proforma - Court
required to apply judicial mind - even the
order of taking cognizance cannot be
passed in mechanical manner - impugned
order liable to be quashed . Para - 18

F.I.R. lodged with false and frivolous allegations
by
Block
Education
-
Additional
District
Magistrate submitted enquiry report - applicants
were indulged in raising fake bills with regard to
the vehicle services - in connivance with the
District Basic Education Officer, Hathras - F.I.R.
was lodged on the basis of the directions issued
by
the
District
Magistrate
-
applicants
summoned through a printed order - without
recording any reasons in support of satisfaction
for taking cognizance against the applicants and
merely the case, Section, date of the order and
date of the summon have been filled. Para -
3,4,5
11 All. Vishnu Kumar Gupta & Anr. Vs. State of U.P. & Anr.
113
HELD:- The conduct of the judicial officers
concerned
in
passing
orders
on
printed
proforma by filling up the blanks without
application of judicial mind is objectionable and
deserves to be deprecated - summoning of an
accused in a criminal case is a serious matter
and the order must reflect that Magistrate had
applied his mind to the facts as well as law
applicable thereto.Para - 19

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

List of Cases Cited:-

1. Ankit Vs St. of U.P. & anr. , [2009(9) ADJ 778]
2. Shakuntala Devi Vs St. of U.P. & 4 ors. ,
Application U/s 482 No. 11232 of 2018

3. Avdhesh Vs St. of U.P. & anr., [2019(6) ADJ
667]

4. Dushyant Kumar Vs St. of U.P. & ors. ,
Application U/s 482 No. 7206 of 2020

5. Ashu Rawat Vs St. of U.P. & anr., Application
U/s 482 No. 13883 of 2020

6. Rishipal & ors. Vs State of U.P. & anr.,
[2019(3)ADJ 699]

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

8. Sunil Bharti Mittal Vs C.B.I. ,AIR 2015 SC 923

9. Darshan Singh Ram Kishan Vs St. of Mah. ,
MANU/SC/0089/1971: (1971) 2 SCC 654

10. R.P. Kapur Vs St. of Punj., AIR 1960 SC 866:
(1960) 3 SCR 388: 1960 Cri LJ 1239,

11. St. of Har. v. Bhajan Lal ,1992 Supp (1) SCC
335: 1992 SCC (Cri) 426,

12. Janata Dal Vs H.S. Chowdhary, (1992) 4
SCC 305: 1993 SCC (Cri) 36,

13. Raghubir Saran (Dr.) Vs St. of Bih. ,AIR 1964
SC 1:(1964) 2 SCR 336:(1964) 1 CRi LJ 1,

14. St. of Karn. Vs M Devendrappa ,(2002) 3
SCC 89: 2002 SCC (Cri) 539

15. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Sharaful Haque, (2005) 1 SCC 122: 2005 SCC
(Cri) 283.

16. Megh Nath Guptas & anr. Vs St. of U.P. &
anr., 2008 (62) ACC 826,

17. Deputy Chief Controller Import and Export
Vs Roshan Lal Agarwal, 2003 (4) ACC 686 (SC)

18. UP Pollution Control Board Vs Mohan
Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC
1456

19. Kanti Bhadra Vs St. of W.B., 2000 (1) JIC
751 (SC): 2000 (40) ACC 441 (SC),

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

1. Heard Sri Anshul Kumar Singhal,
learned counsel for the applicants and Sri
Pankaj Srivastava, learned A.G.A. for the
State and perused the record.

2. This application under Section 482
Cr.P.C. has been filed seeking quashing of
the charge sheet dated 12.10.2018 and
summoning order dated 22.12.2018 as well
as the entire proceedings of Case No. 4492
of 2018 (State Vs. Vishnu Gupta), arising
out of Case Crime No. 0689 of 2017, under
Sections 420, 467, 468, 471, 406 I.P.C.,
Police Station Hathras Gate, Hathras,
pending in the court of Chief Judical
Magistrate, Hathras.

3. It has been submitted by learned
counsel for the applicants that the F.I.R. has
been lodged with false and frivolous
allegations
on
12.09.2017
by
Block
Education Officer, Ramanpur, District
Hathras, on the basis of the enquiry report
submitted
by
the Additional
District
Magistrate,
(F&R)
Hathras
that
the
applicants were indulged in raising fake
bills with regard to the vehicle services and
114 INDIAN LAW REPORTS ALLAHABAD SERIES
had gained a sum of Rs.3,08,593/- in
connivance
with
the
District
Basic
Education Officer, Hathras and as such, the
F.I.R. was lodged on the basis of the
directions issued by the District Magistrate.

4. Before arguing the case on merits,
learned counsel for the applicants while
pressing the present application under
Section 482 Cr.P.C. submits that after
submission of charge sheet the applicants
have been summoned by order dated
22.12.2018 and the court below while
summoning the applicants has materially
erred and did not follow the dictum of law
as propounded by the Hon'ble Supreme
Court in various cases that summoning in
criminal case is a serious matter and the
court below without dwelling into material
and visualizing the case on the touch stone
of probability should not summon accused
person to face criminal trial. It is further
submitted that the court below has not
taken into consideration the material placed
before the trial court along with charge
sheet and, therefore, the trial court has
materially
erred
in
summoning
the
applicants. The court below has summoned
the applicants through a printed order,
which is wholly illegal.

5. It has been further submitted that
the impugned summoning order dated
22.12.2018 is not a judicial order as it has
been passed on a printed proforma without
recording any reasons in support of
satisfaction for taking cognizance against
the applicants and merely the case, Section,
date of the order and date of the summon
have been filled.

6. It is next submitted that no offence
as described in the F.I.R. or in the statement
of the witnesses recorded during the course
of investigation has taken place and the
whole story as narrated in the F.I.R. as well
as in the statement of the witnesses has
been cooked and manufactured, therefore,
the court below has materially erred in
summoning the applicants, as such the
orders are liable to be set aside.

7. In support of his submission,
learned counsel for the applicants has relied
upon several judgements of this Court.

Ankit Vs. State of U.P. And
Another reported in [2009(9) ADJ 778]

Shakuntala Devi Vs. State of
U.P. And 4 others passed in Application
U/s 482 No. 11232 of 2018

Avdhesh Vs. State of U.P. And
Another reported in [2019(6) ADJ 667]

Dushyant Kumar Vs. State of
U.P. And Others passed in Application
U/s 482 No. 7206 of 2020

Ashu Rawat Vs. State of U.P.
And Another passed in Application U/s
482 No. 13883 of 2020

Rishipal & others Vs. State of
U.P. And Another [2019(3)ADJ 699]

8. Learned A.G.A., however, opposes
the contention of learned counsel for the
applicants on the ground that the court
below keeping in view the charge sheet and
material submitted therewith, after applying
judicial
mind
and
finding
sufficient
material
on
record,
summoned
the
applicants along with other co-accused
persons to face trial and, therefore, there is
nothing illegal so far as the order of
summoning passed by the court below is
concerned.

9. Having heard learned counsel for
the parties and perused the record, it is
apparent that all submissions put forth by
learned counsel for the applicants before
this Court are pertaining to factual aspect of
11 All. Vishnu Kumar Gupta & Anr. Vs. State of U.P. & Anr.
115
the matter and can only be considered by a
criminal court in a full-fledged criminal
trial, and it is not a stage where minute
scrutiny of the evidence should have been
made by the court below.

10. At this juncture, it is fruitful to
have a look so far as the law pertaining to
summoning of the accused persons, by
taking cognizance on a police report filed
under section 173 of the Cr.P.C., is
concerned and the perusal of the case law
mentioned herein below would clearly
reveal that cognizance of an offence on
complaint is taken for the purpose of
issuing process to the accused. Since, it is a
process of taking judicial notice of certain
facts which constitute an offence, there has
to be application of mind as to whether the
material collected by the Investigating
Officer results in sufficient grounds to
proceed further and would constitute
violation of law so as to call a person to
appear before the criminal court to face
trial. This discretion puts a responsibility
on the magistrate concerned to act
judiciously keeping in view the facts of the
particular case as well as the law on the
subject.

11. In AIR 2012 SC 1747, Bhushan
Kumar and Anr. v. State (NCT of Delhi)
and Anr., the Apex Court has held that
Section 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 narration of the same is mandatory,
meaning thereby that it is not a prerequisite for deciding the validity of the
summons issued.

12. In AIR 2015 SC 923, Sunil
Bharti Mittal v. Central Bureau of
Investigation
(Three
Judges
Bench)
Hon,ble Apex Court held as under:

"
47.
However,
the
words
"sufficient
grounds
for
proceeding"
appearing in the Section are of immense
importance. It is these words which amply
suggest that an opinion is to be formed only
after due application of mind that there is
sufficient basis for proceeding against the
said accused and formation of such an
opinion is to be stated in the order itself.."

13. The provisions relating to the
power of the police to investigate into
offences and the procedure to be adopted
by them are to be found in Chapter XII
which falls under the heading 'Information
to the Police and their powers to
investigate'. Under Section 156 (1) of the
Code an officer-in-charge of a police
station may investigate any cognizable
offence
without
any
order
of
the
Magistrate, however, this is not a case
pertaining to non-cognizable cases, wherein
without an order from a Magistrate
specified in Section 155(2) no investigation
can be made. Any Magistrate empowered
under Section 190 may order, under Section
156 (3), before taking cognizance of
offence, the police to investigate into a
cognizable case. Section 157 prescribes the
procedure to be followed by the officer-incharge of a police-station when he has
reason to suspect the commission of an
offence which he is empowered under
Section 156 to investigate and in such an
eventuality he will forthwith send a report
of the same to a Magistrate, empowered to
116 INDIAN LAW REPORTS ALLAHABAD SERIES
take cognizance of such offence upon a
police report and proceed in person, or
depute any one of his subordinate officers
to investigate the case. No need to say that
if there is sufficient material/ evidence
against accused person(s) arrest of the
offender may be made. Where the S.H.O.
of a police station take a decision not to
investigate an cognizable offence the
Magistrate even then may direct the police
to make an investigation under section
156(3) of the Cr.P.C. Above mentioned
provisions clearly demonstrate that scheme
of the Code is that an investigation should
take place into a cognizable offence and the
investigation must be carried out and
completed without delay. The investigation
part is however left in entirety to the police
and there is no scope of interference with
the same.

14. Now come the next stage where
after investigation the officer in charge of
the police-station may find sufficient
material against accused person(s) or may
also not find sufficient material as the case
may be. If sufficient evidence or reasonable
grounds to justify the forwarding of the
accused to a Magistrate have been found in
investigation, such officer will forward the
accused to a Magistrate empowered to take
cognizance of the offence, under Section
170 of the Code. On the other side, if it
appears to the officer in charge of the
police station that there is no sufficient
evidence or reasonable ground to forward
the accused to a Magistrate, he by virtue of
Section 169 of the Code will release the
accused, if in custody, on his executing a
bond, to appear, if and when required,
before a Magistrate empowered to take
cognizance of the offence. The aforesaid
provisions however make it very clear that
in either eventuality, after completion of the
investigation, the officer in charge of the
police station will have to submit a report
under Section 173, to the Magistrate. It is
worthwhile to recall here that nowhere in
the Code expression 'charge-sheet' or 'final
report' has been used and Section 173 of
the Code talks only about a report to be
submitted by the police after completion of
the investigation.

15. In Darshan Singh Ram Kishan v.
State
of
Maharashtra
reported
in
MANU/SC/0089/1971: (1971) 2 SCC 654, it
was held that the process of taking
cognizance does not involve any formal
action, but it occurs as soon as the Magistrate
applies his mind to the allegations and,
thereafter, takes judicial notice of the offence.
As provided by Section 190 of the Code of
Criminal Procedure, a Magistrate may take
cognizance of an offence either, (a) upon
receiving a complaint, or (b) upon a police
report, or (c) upon information received from
a person other than a police officer or even
upon his own information or suspicion that
such an offence has been committed. As has
often been held, taking cognizance does not
involve any formal action or indeed action of
any kind but occurs as soon as a Magistrate
applies his mind to the suspected commission
of an offence. Cognizance, therefore, takes
place at a point when a Magistrate first takes
judicial notice of an offence. This is the
position
whether
the
Magistrate
takes
cognizance of an offence on a complaint, or
on a police report, or upon information of a
person other than a police officer. Therefore,
when a Magistrate takes cognizance of an
offence upon a police report, prima facie he
does so of the offence or offences disclosed
in such report."

16. In the case of Fakhruddin Ahmad
(supra), the Hon'ble Supreme Court has
observed that being an expression of
indefinite import, it is neither practicable
11 All. Vishnu Kumar Gupta & Anr. Vs. State of U.P. & Anr.
117
nor desirable to precisely define as to what
is
meant
by
"taking
cognizance".
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 title 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.

17. In the case of Harishchandra
Prasad Mani and others (supra), it was held
in para 12 that it is well settled by a series
of decisions of this Court that cognizance
cannot be taken unless there is at least
some material indicating the guilt of the
accused vide R.P. Kapur v. State of Punjab
AIR 1960 SC 866: (1960) 3 SCR 388: 1960
Cri LJ 1239, State of Haryana v. Bhajan
Lal 1992 Supp (1) SCC 335: 1992 SCC
(Cri) 426, Janata Dal v. H.S. Chowdhary
(1992) 4 SCC 305: 1993 SCC (Cri) 36,
Raghubir Saran (Dr.) v. State of Bihar AIR
1964 SC 1:(1964) 2 SCR 336:(1964) 1 CRi
LJ 1, State of Karnataka v. M Devendrappa
(2002) 3 SCC 89: 2002 SCC (Cri) 539 and
Zandu Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque (2005) 1 SCC 122: 2005
SCC (Cri) 283.

18. This type of order has already
been held unsustainable by this Court in the
case of Ankit (supra) relying on in a
number of decisions of the Apex Court. The
relevant portion of the said decision, is
extracted below:

"Although as held by this Court
in the case of Megh Nath Guptas & Anr
V State of U.P. And Anr, 2008 (62) ACC
826, in which reference has been made to
the cases of Deputy Chief Controller
Import and Export Vs Roshan Lal
Agarwal, 2003 (4^) ACC 686 (SC), UP
Pollution Control Board Vs Mohan
Meakins, 2000 (2) JIC 159 (SC): AIR
2000 SC 1456 and Kanti Bhadra Vs State
of West Bengal, 2000 (1) JIC 751 (SC):
2000 (40) ACC 441 (SC), the Magistrate is
not required to pass detailed reasoned order
at the time of taking cognizance on the
charge sheet, but it does not mean that
order of taking cognizance can be passed
by filling up the blanks on printed
proforma. At the time of passing any
judicial order including the order taking
cognizance on the charge sheet, the Court is
required to apply judicial mind and even
the order of taking cognizance cannot be
passed in mechanical manner. Therefore,
the impugned order is liable to be quashed
and the matter has to be sent back to the
Court below for passing fresh order on the
charge
sheet
after
applying
judicial
mind."(Emphasis supplied)

19. In view of the above, the conduct
of the judicial officers concerned in passing
orders on printed proforma by filling up the
blanks without application of judicial mind
is objectionable and deserves to be
deprecated. The summoning of an accused
in a criminal case is a serious matter and
the order must reflect that Magistrate had
applied his mind to the facts as well as law
applicable thereto.

20. In light of the judgments referred
to above, it is explicitly clear that the order
118 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 22.12.2018 passed by Chief Judicial
Magistrate, Hathras is cryptic and does not
stand the test of the law laid down by the
Apex Court. Consequently, the order dated
22.12.2018 cannot be legally sustained, as
the Magistrate failed to exercise the
jurisdiction vested in him/her resulting in
miscarriage of justice.

21. Accordingly, the present criminal
misc. application succeeds and is allowed
at the admission stage without issuing
notice to the prospective opposite parties,
as they have no right to be heard at precognizance stage. Order dated 22.12.2018
is, hereby, quashed.

22. The Chief Judicial Magistrate,
Hathras
is
directed
to
exercise
his
discretionary power and decide afresh the
application for summoning the applicants
and pass appropriate orders in accordance
with law keeping in view the observations
made by this Court as well as the direction
contained in the judgments referred to
above within a period of two months from
the date of production of a certified copy of
this order.

23. With the above direction, the
application stands allowed.
----------

(2020)11ILR A118
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ-A No. 5414 of 2020

Manoj Kumar Singh & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents
Counsel for the Petitioners:
Sri Rakesh Kumar Verma, Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

A. Service Law- Uttar Pradesh Retirement
Benefits Rules, 1961- U.P. Retirement
Benefits (Amendment) Rules, 2005
-
Pension
Any
delay
in
selection
for
appointment, ipso facto, cannot be a
ground to extend benefit of old pension
scheme
notwithstanding
the
clear
stipulation in the pension rule specifying
date
of
entry
in
service
to
be
determinative of the pension scheme.
(Para 30)

Distinction between Rules of recruitment
and conditions of service - Right to receive
pension is a statutory right and the pensionary
benefits can be claimed or granted only in
accordance with the applicable pension Rules.

(a) Rules of recruitment would regulate
different stages of recruitment i.e. from
the issuance of advertisement till the
issuance of appointment letter while
conditions of service would come into play
after appointment is offered. The expression
"conditions of service" is an expression of wide
import and means all such conditions which
regulate the holding of a post by a person right
from the time of his appointment till his
retirement and even beyond it in matters like
pension etc. (Para 12, 13, 15)

Terminal benefits as well as pensionary
benefits constitute conditions of service.
The employer has the undoubted power to
revise the salaries and/or the pay-scales as also
terminal benefits/pensioners benefits, as the
case may be, shall take effect is a concomitant
of the said power. So long as such date is
specified in a reasonable manner, i.e., without
bringing
about
a
discrimination
between
similarly situated persons, no interference is
called for by the Court in that behalf. (Para 14)

(b) The principle that rules of game
cannot be changed during the midst of
game itself would operate only till the