Heard Mr. Raj Kumar Kesari, learned counsel for applicants and learned A.G.A. for State.
This application under Section 482 Cr.P.C. has been filed challenging cognizance/summoning order dated 04.11.2020 passed by Additional Chief Judicial Magistrate-II, Gautam Buddh Nagar in Case Crime No.353 of 2020, under Sections 147, 148, 149, 452, 323, 504, 506, 324, 307 I.P.C., Police Station- Jewar, District- Gautam Buddh Nagar as well as entire proceedings of above-mentioned case.
Record shows that in respect of an incident which occurred on 01.08.2020, a delayed F.I.R. dated 02.08.2020 was lodged by first informant/opposite party no.2 Aas Mohammad and was registered as Case Crime No.353 of 2020, under Sections 147, 148, 149, 452, 323, 504, 506, 324, 307 I.P.C., Police Station- Jewar, District- Gautam Buddh Nagar. In the aforesaid F.I.R., five persons, namely, Rahees, Saeed Fauji, Kamil, Saddam and Nawab have been nominated as named accused, whereas four unknown persons have also been nominated as accused.
After aforesaid F.I.R. was registered, Investigating Officer proceeded with the statutory investigation of above-mentioned case crime number in terms of Chapter- XII Cr.P.C. Upon completion of investigation of aforesaid case crime number, Investigating Officer submitted the charge-sheet dated 16.09.2020, whereby named accused, Rahees and Kamil have been charge-sheeted under Sections 452, 323, 324, 504, 506 I.P.C., whereas named accused, Saddam has been charge-sheeted under Sections 452, 323, 324, 504, 506, 307 I.P.C. Upon submission of aforesaid police report, the Magistrate took cognizance against non-charge-sheeted accused, i.e., Sayyed Fauji @ Saeed Khan and Nawab (applicants herein).
Learned counsel for applicants contends that present applicants were nominated as named accused in the F.I.R. giving rise to this application under Section 482 Cr.P.C. However, they were not charge-sheeted in the charge-sheet/police report submitted by Investigating Officer. However, at the time of taking cognizance, Magistrate has taken cognizance against non-charge-sheeted accused, i.e., applicants herein and as a consequence thereof, summoned present applicants also. In the humble submission of learned counsel for applicants, it is contended that cognizance/summoning order dated 04.11.2020 passed by court below is manifestly illegal. In support of his submission, he has placed reliance upon judgment of Apex Court in Kishori Singh and Others Vs. State of Bihar and Others, AIR 2000 SCC 3725. On the aforesaid premise, it is thus urged that entire proceedings of above-mentioned criminal case insofar as they relate to present applicants, are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. He has invited the attention of Court to the Constitution Bench judgment of Apex Court in Dharma Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306, wherein Apex Court has held that even in respect of non-charge-sheeted accused, Court can take cognizance in exercise of its power under Section 190(1)(b) Cr.P.C. at the stage of taking cognizance. In view of aforesaid settled position, no illegality was committed by court below in taking cognizance and summoning non-charge-sheeted accused. Consequently, present application is liable to be dismissed by this Court.
Having heard learned counsel for the parties and upon perusal of record as well as the judgment of Apex Court in Dharma Pal and Others (supra), this Court does not find any infirmity or illegality in Cognizance Taking Order/Summoning Order dated 04.11.2020 passed by court below.
In view of above, present application fails and is therefore liable to be dismissed.
Accordingly, it is dismissed.
Order Date :- 22.1.2021 Saif