Court No. - 49
Case :- APPLICATION U/S 482 No. - 32106 of 2018 Applicant :- Shitla Prasad Vishwakarma And 14 Others Opposite Party :- State Of Up And Another Counsel for Applicant :- Vivek Shukla,Amit Kumar Tiwari,Narendra Deo Shukla Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicants and learned AGA for the State.
2. The present application is directed against the order dated 27.07.2018 passed by the Judicial Magistrate II, Allahabad in Criminal Case No. 1566 of 2018 (State Vs. Aalok and others), under Section 147, 323, 427 I.P.C., Police Station Bahariya, District Allahabad, by which the cognizance was taken and process was issued against the applicants.
3. Learned counsel for the applicant submits that the impugned order has been passed in a mechanical exercise of power without due and proper application of mind. In this regard, it is submitted that the impugned order has been prepared on a pre- printed/typed proforma wherein only the name of parties, section description of the offence alleged, police station, district, date of the order, the date of the hearing and the date fixed on summons have been filled by hand. It is further submitted that the wholly false and frivolous prosecution has been lodged against the applicants that the entire family members has been falsely implicated. Paragraph nos. 17 and 18 of the affidavit in support of the present application read as under:
"17. That the applicant no. 1 Shitla Prasad is aged about 56 year, applicant no. 2 Ram Bharat is aged about 62 years, applicant no. 3 Ram Kumar is aged about 78 years, they are agricultures, the applicant no. 4 Ram Abhilakh is aged about 48 years, applicant no. 5 Rajesh Kumar is aged about 33 years and applicant no. 6 Brajesh Kumar is aged about 40 years, their furniture shop.
18. That applicant no. 7 Dharmendra Kumar is aged about 32 years, is constable in C.R.P.F. Central Government, applicant no. 8 Anirudh Prasad is aged about 27 years, he is constable in Indian Army the Central Government servant. The applicant no. 9 Janardhan Prasad is aged about years, applicant no. 10 Ananand is aged about 28 years, applicant no. 11 Alok Kumar is aged about 21 years they are preparing for competitive examination. The applicant no. 12 Vipin Kumar is aged about he is student of I.T.I. IInd year in Sikandara, applicant no. 13 Shailesh Kumar is aged about 16 years, he is B.Sc. Ist year in Radha Raman Degree College Sikandara, applicant no. 14 Dinesh Kumar is aged about 27 years and applicant no. 14 Dinesh Kumar is aged about 27 years and applicant no. 15 Dileep Kumar both are students and preparing for competitive examination and those applicants have been falsely implicated in the present case for their harassment and nothing else and this case will ruin the entire carrier of the applicants specially who are students and also preparing for competitive examination."
4. The above submission advanced by the learned counsel for the applicant deserve acceptance inasmuch as though the cognizance/summoning order need not contain any reasons to believe and may not be reasoned, however, perusal of the same must reveal that the learned Magistrate had taken cognizance of the offence upon consideration of the case-diary material.
5. In a case such as this, where most material part with reference to cognizance appears on a printed proforma without it appearing if the learned Magistrate had examined any particular fact allegation or material and which order does not make reference to any material existing on the case-diary, it is difficult to reach a conclusion that due application of mind had preceded such an order.
6. Considering the above, no useful purpose would be served in keeping the present petition pending any further. The order dated 27.07.2018 is set aside and the matter is remitted to the concerned learned court below to pass a fresh and proper cognizance order. The above exercise may be completed as expeditiously as possible, preferably within a period of one month from the date of production of a certified copy of this order.
7. With the aforesaid direction, the application is finally disposed of.
Order Date :- 18.9.2018 Prakhar