Court No. - 34
Case :- APPLICATION U/S 482 No. - 18906 of 2005 Applicant :- Bhavya Mutual Benefit Ltd. Thru R.N.D. Gupta And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.K. Chaubey Counsel for Opposite Party :- Govt. Advocate,K.C.Sinha,Rakesh Sinha
Hon'ble Sudhir Agarwal,J.
1. Heard Sri S.K. Chaubey, learned counsel for applicants and learned A.G.A. for State.
2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash proceedings of Complaint Case No.1727 of 2001, under Section 17/271 read with Section 629-A of Companies Act, pending in the Court of Special Chief Judicial Magistrate, Varanasi.
3. It is contended that when complaint was received by Special Chief Judicial Magistrate, Varanasi, he simply passed order dated 15.09.2000 that complaint has been received, let it be registered and issue summons to accused, which clearly shows non application of mind by concerned Magistrate as summon has been issued to accused without looking into the investigation report whether there was sufficient material to summon the accused or not. The order dated 15.09.2000 reads as under :
"vkt ifjokn i= jftLVj vkQ dEiuh ;w0ih0 dkuiqj }kjk nkf[ky gqvkA vkns'k gqvk fd ntZ jft0 gksA vfHk;qDrx.k ds fo:) lEeu fnukad 18-10-2000 ds fy;s tkjh gksA"
“Complaint submitted today by Register of Company, U.P. Kanpur. Ordered to register it. Accused be summoned on 18.10.2000.”
(English translation by the Court)
4. It clearly shows non application of mind on the part of Magistrate who issued summons to accused merely on the ground that charge sheet was submitted.
5. Learned counsel for applicants placed reliance on a Single Judge judgment of this Court in Dinesh Kumar Gupta Vs. State of U. P. and another, 2013 (4) ADJ 274, wherein Court considering a similar order has held that such an order cannot be sustained and there is total non application of mind on the part of Magistrate. Relevant extract of aforesaid judgment reads as under :
"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."
6. Learned counsel for applicant has also placed reliance on a Supreme Court judgment in Fakhruddin Ahmad vs. State of Uttraranchal, 2009 (64) AllCri C 774 and also on a judgment of this Court in Akash Garg vs. State of U. P. and others, 2011 (1) ADJ 849.
7. Learned A.G.A. also could not dispute that impugned order shows non application of mind.
8. In view thereof, this application is disposed of with direction to Magistrate concerned to consider the complaint and pass speaking and reasoned order expeditiously within a period of three weeks from the date of receipt of certified copy of this order.
Order Date :- 28.11.2019 Ashish Pd.