Court No. - 49
Case :- MATTERS UNDER ARTICLE 227 No. - 5867 of 2018 Petitioner :- Hero Respondent :- State Of U.P. And Another Counsel for Petitioner :- Anwar Hussain Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
The present petition has been filed to quash the impugned judgment and order dated 2.6.2018 passed by the Additional Sessions Judge, Court No.3, Firozabad in Criminal Revisional No. 135 of 2017 (Hero Vs. State of U.P.), and the impugned order dated 19.9.2017 passed by Chief Judicial Magistrate, Firozabad in Criminal Case No. 3017 of 2016 (State VS. Levesh and others).
Learned counsel for the petitioner submits that the charge sheet in column no. 16 does not include the name of the petitioner as an accused person. Learned Magistrate also did not apply his mind and had mechanically summoned the petitioner. In this regard, the order dated 12.9.2016 by which cognizance has been taken, has been relied upon. Perusal of the order does not indicate the basis on which the petitioner has been summoned inasmuch as it cannot be disputed that the column no.16 of the charge sheet does not include or mention the name of the petitioner as an accused person.
Learned A.G.A. on the other submits that the learned Magistrate may have found the material against the petitioner in the case diary material and in any case upon query being made by the learned Magistrate, the police had subsequently stated that the petitioner is an accused in the present offence under Section 376 IPC. It is settled law that the cognizance order is not required to be a reasoned order. However, it is a judicial order, which has to be passed after due application of mind to the material brought before the learned Magistrate by the police.
Perusal of the cognizance order passed in the instance case does not indicate that the learned Magistrate had summoned the petitioner on the basis of his own application of mind to the material produced by the police upon conclusion of the investigation. In this regard, the name of the petitioner was not mentioned as an accused person in column no. 16. Though it cannot be said that the learned Magistrate could not have summoned the petitioner, at the same time however, such summoning ought to have been proceeded by necessary application of mind by the learned Magistrate.
In such facts it would be desirable if the learned Magistrate had applied his mind to the case diary material and thereafter passed on appropriate order rather than relying on opinion of the investigating officer in that regard.
Accordingly, the orders dated 2.6.2018 and 19.9.2017 cannot be sustained and are hereby set aside. The matter is remitted to the learned Magistrate to pass a fresh cognizance order, strictly in accordance with law.
The aforesaid exercise may be completed as expeditiously as possible, preferably within a period of two month from the date of the production of a certified copy of this order.
The present petition is allowed. Order Date :- 20.8.2018 Mini