The Allahabad High Court has quashed the magistrate’s order for issuing summons against Bahubali Mukhtar Ansari’s son Abbas Ansari and two others after taking cognizance of the offense under Section 171H of CrPC, terming it as illegal.
A Single Bench of Justice Rajeev Misra passed this order while hearing an application under section 482 filed by Abbas Ansari and 2 Others.
The application under Section 482 Cr.P.C has been filed challenging the charge sheet dated 05.06.2022 submitted in Case under Section 188, 171-F I.P.C, Police Station Kotwali, District Mau, the cognizance taking order/summoning order dated 15.09.2022 passed by Additional Chief Judicial Magistrate/(Senior Division) Mau, in Criminal Case under Section 188, 171-H I.P.C, Police Station Kotwali, District Mau as well as the entire proceeding of aforementioned criminal case now pending in the Court of Additional Chief Judicial Magistrate (Senior Division) Mau.
Counsel for the applicants submitted that the applicants were charge-sheeted vide charge-sheet dated 05.06.2022 under Section 188 and 171-F IPC. However, the Magistrate at the stage of taking cognizance under Section 190(1) (b) Cr.P.C has summoned the applicants under Section 171-H I.P.C.
He, therefore, submitted that impugned cognizance taking order/ summoning order is manifestly illegal inasmuch the Magistrate can neither substract nor cited any section mentioned in the charge-sheet under which the accused persons have been charge-sheeted at the stage of taking cognizance/summoning.
To buttress his submission he has relied upon the judgment rendered by a Single Judge of the Court in Matter Under Article 227 dated 19.04.2023. On the above premise, it is thus urged that the cognizance taking order/summoning order passed by concerned Magistrate cannot be sustained and therefore liable to be quashed by this Court.
M.C Chaturvedi, the Additional Advocate General assisted by Sanjay Kumar Yadav, the A.G.A, in all fairness submits that in view of law laid down by the Court as referred to above, there is no opposition to the application.
Having heard, the counsel for applicants M.C Chaturvedi, the Additional Advocate General assisted by Sanjay Kumar Yadav, the A.G.A and upon perusal of record, the Court found that the applicants were charge-sheeted under Section 171-F IPC. However, the concerned Magistrate while taking cognizance in exercise of jurisdiction under Section 190(1) (b) Cr.P.C has summoned the applicants under Section 171-H CrPC. It is well settled that the Magistrate at the time of taking cognizance/ summoning the accused has no jurisdiction to add or subtract any section mentioned in the charge sheet. As such, the impugned cognizance taking order/summoning order is prima facie unsustainable.
“In view of above, the impugned cognizance taking order/summoning order is hereby quashed. The concerned Magistrate shall pass a fresh cognizance taking order/summoning order in the light of the law laid down by the Court in the case of Vikul (Supra) within a period of two weeks from the date of presentation of certified copy of this order. The applicant shall positively file the certified copy of the order before Court below within a period of two weeks from the date of receipt of the certified copy of the order”, the order reads.