Mahtab v. State of U.P. Thru. Prin.Secy. Home Deptt.And Another

Court No. - 11 Case :- APPLICATION U/S 482 No. - 10186 of 2023 Applicant :- Mahtab Opposite Party :- State Of U.P. Thru. Prin.Secy. Home Deptt.And Another Counsel for Applicant :- Gulam Rabbani Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J. Heard Sri Gulam Rabbani, learned counsel appearing for the applicant, learned AGA for the State of U.P. and perused the record. By means of instant application under Section 482 Cr.P.C., the applicant has prayed for the following main relief:- "Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the entire proceedings of Criminal Case No.503 of 2021; State Versus Mehtab and others, arising out of Case Crime No.141 of 2020, under sections-323, 354, 354-A, 452, 506 1.P.C., relating to Police Station-Patranga, District Faizabad/Ayodhya, pending in the Court of learned Civil Judge (Junior Division), VII/Judicial Magistrate, Faizabad, as well as impugned chargesheet no.168/20, dated 28.9.2020, submitted by the Investigating Officer against the petitioner, under sections - 323, 506 and 354-A I.P.C. in aforesaid Case Crime No. 141 of 2020, and impugned cognizance/summoning order dated 9.7.2021, passed by the learned Civil Judge (Junior Division), VII/Judicial Magistrate, Faizabad, whereby illegally summoned the petitioner, under sections -323, 354, 354-A, 452 and 506 I.P.C, as contained in Annexure nos. 2 and 3 respectively to this petition, in the interest of law and justice." As regards relief, quoted above, learned counsel for the applicant after arguing the matter at some length says that he would only press the relief so far as it relates to taking cognizance by the trial Court vide order dated 09.07.2021. On the aforesaid, learned counsel for the applicant says that after investigation, the charge sheet was submitted by the Investigating Officer (IO) under Sections 323, 506 and 354-A IPC. He submitted that the FIR as Case Crime No. 141 of 2020 at P.S. Patranga, District Faizabad now Ayodhya was lodged on

16.07.2020 and a perusal thereof would show that it was lodged under Sections 147, 452, 323, 506 IPC and thereafter, the IO submitted charge sheet dated 28.09.2020 under Sections 323, 506 and 354-A IPC, however, the trial Court namely Civil Judge (Junior Division), VII/J.M, Faizabad took cognizance against the applicant under Sections 323, 354, 354-A, 452 and 506 IPC and in regard to other co-accused namely Sarfaraj, Taukeer and Dabeer, the IO submitted charge sheet under Sections 323 and 506 IPC and accordingly, the cognizance was taken by the trial Court under these sections only against the said accused. He further submitted that law on the issue is settled. As per settled proposition of law, while taking cognizance, the trial Court is required to take note of the contents of charge sheet including sections indicated therein and at the stage of taking cognizance, it cannot add or subtract the sections. In this regard, reliance has been placed on the judgment passed by Hon'ble Apex Court in the case of State of Gujrat vs. Girish Radhakrishnan Vadre reported in (2014) 3 SCC 659 and the judgment dated 09.09.2022 passed by this Court in Application U/S 482 No. 23830 of 2021 (Smt. Shalini Kashyap and another vs. State of U.P. and others). He further submitted that taking note of settled proposition of law and the recitals of order impugned dated 09.07.2021, interference of this Court is required in the matter. The prayer is to allow the instant application and interfere in the order impugned. Learned AGA opposed aforesaid prayer of applicant's counsel, however, he could not dispute the legal proposition of law as placed before this Court by applicants' counsel. Considered the aforesaid and perused the record. From the charge sheet annexed as Annexure No. 2 to this application, it is apparent that the IO submitted charge sheet against the applicant under Sections 323, 506 and 354-A IPC. It also reflects from the impugned order dated 09.07.2021 that in regard to the applicant, cognizance has been taken by the trial Court under Sections 323, 354, 354-A, 452 and 506 IPC and against other accused namely Sarfaraj, Taukeer and Dabeer, cognizance has been taken under Sections 323 and 506 IPC, in which the IO submitted charge sheet against them. In the judgments referred by the applicant's counsel, it has been held that at the time of taking cognizance, the trial Court cannot add or subtract sections. For the reasons aforesaid, this Court is of the view that interference is required in the matter. According, the order impugned dated 09.07.2021 is hereby set-aside so far as it relates to the accused/applicant namely Mahtab. The matter is remanded back to trial Court concerned to pass a fresh order after taking note of aforesaid judgments expeditiously. The instant application is partly allowed in above terms. Order Date :- 17.11.2023 Arun/- High Court of Judicature at Allahabad, Lucknow Bench