Heard Shri Pratul Gupta learned counsel for the applicants and learned A.G.A. as well as Shri Amit Chaudhary, learned counsel for respondent no. 2.
Learned counsel for the applicants submits that the applicants have been falsely implicated. Statement and the material filed by the prosecution do not establish the prima facie case and learned magistrate has failed to consider the same while taking cognizance. The applicant has not committed any offence.
It is further submitted that respondent no. 2 was married to one Shyam Singh and without taking divorce from him she was living with the applicant no. 1 and therefore, no offence under Section 498A could be attracted.
Learned A.G.A. as well as learned counsel for the complainant have opposed the prayer of learned counsel for the applicants and have submitted that F.I.R. discloses prima facie offence against the applicants. The investigating officer after conducting the investigation and collecting the material has submitted the charge sheet. Statement of respondent no. 2 recorded under Section 164 Cr.P.C. also discloses the prima facie offence and supports the prosecution case.
It is further contended on behalf of respondent no. 2 that the applicants are quite influential persons and i.e. why in the F.I.R. which was registered in the year 2017, charge sheet could be filed only after four years i.e. on 24.06.2021 and in that period of four years the investigation has been transferred several times at the instance of the applicants.
Learned counsel for respondent no. 2 as well as learned A.G.A. further submits that learned magistrate after finding prima facie case in the F.I.R. as well as in the statement under Section 164 Cr.P.C. of respondent no. 2 as well as other material submitted along with charge sheet has rightly taken the cognizance and issued process. It is further submitted that at the time of taking cognizance learned magistrate is not required to look into the defence of the applicants, neither he is required to weigh the evidence deeply rather only prima facie case has to be seen. Since in this case the commission of prima facie offence has been made out by the applicants, therefore, the cognizance has been taken. In support he has relied on the judgment of full Bench reported in "2015(3) SCC 424" titled as "Sonu Gupta Vs. Deepak Gupta and others", wherein the Apex Court has held that at the stage of cognizance and summoning, the magistrate is required to apply its judicial mind only with a view to take cognizance of the offence and at this stage the magistrate must not undertake the exercise to find out whether the materials will lead to conviction or not. The relevant para 8 and 9 of the aforesaid judgment is extracted below:-
"8. At the stage of cognizance and summoning, the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.
9. At the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. Even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial."
On due consideration to the arguments advanced by learned counsel for the parties, this Court finds that the F.I.R. prima facie discloses the offence against the applicants. The statement of respondent no. 2 under Section 164 Cr.P.C. also supports the prosecution case and the investigating officer after conducting the investigation has filed the charge sheet against the applicants and upon the charge sheet learned magistrate after finding a prima facie case against the applicants has rightly taken the cognizance and issued the process against him. There is no illegality in the cognizance order dated 24.06.2021 passed by the learned magistrate.
In view of the above, the 482 petition is dismissed.
The applicants are directed to surrender before the court below within 15 days from today and if the applicants apply for bail their bail application shall be considered and decided expeditiously within seven days thereafter.
Order Date :- 25.8.2021 R.C.