Jitendra Paswan Alias Doctor v. State of U.P & Anr.

Hon'ble Saurabh Srivastava,J.

#1. Heard learned counsel for applicant and learned AGA for the State-respondent.

16.06.2024 no..04/2023

#2. The present application has been preferred challenging the chargesheet cognizance/summoning order dated 10.07.2024 passed in Session Case No.1033 of 2024 (State Vs. Sambhu Sonkar and others), arising out of Case Crime No.484 of 2023, under Section 272 IPC and Section 8/21 NDPS Act and Section 60 Excise Act, Police Station Rajghat, District Gorakhpur, pending in the court of learned Additional District & Sessions Judge, Court No.8/Special Judge, NDPS Act, Gorakhpur.

#3. Brief facts of the present case are that on the information, a raid was conducted by first information i.e. Sub-Inspector/opposite party no.2 alongwith some other police personnel's whereupon they arrested one woman, namely, Pooja along with illegal liquor and smack and thereafter prepared recovery memo. When the said woman inquired by police team, she stated that she along with his husband, namely, Sambhu Sonkar and one Soni, are involved in selling illegal liquor and smack and the said smack was given to her by one doctor resident of District Mau. In pursuance of the said raid, opposite party no.2 lodged FIR against applicant and three other co-accused. After lodging of the FIR, inquiry was initiated and during the inquiry, police arrested the applicant and recorded his confessional statements and after conduction of the inquiry, the concerned Investigating Officer submitted chargesheet on dated 14.06.2024 against applicant for offence under Section 8/21 NDPS Act whereupon learned court concerned taken cognizance of offence vide order dated 10.07.2024 which impugned the present application.

#4. Learned counsel for applicant argued that applicant has falsely been implicated in the present case since neither he was present at the place of alleged incident nor anything was recovered from his possession and as such, no offence is made out against applicant. It has also been argued by learned counsel for applicant that without conducting fair investigation, the concerned Investigating Officer submitted chargesheet against applicant but without considering the said facts and without applying its judicial mind, learned court concerned taken cognizance of offence over the said chargesheet which is abuse of process of law and as such, same may be quashed.

#5. Per contra, learned AGA vehemently opposed the prayer as made in the application by way of submitting that the contentions, which are sought to be raised on behalf of applicant, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial.

#6. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of taking cognizance/summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241, it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". At the stage of taking cognizance, a court's primary focus is to determine if a prima facie case exists, meaning whether there is sufficient evidence to suggest that an offense has been committed, and not to delve into the merits of the case or the evidence.

#7. The aforementioned legal position has also been considered in a recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another).

#8. From perusal of the material available on record in shape of narrations made in the FIR and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against applicant. All the submission made at the bar, relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 528 BNSS.

#9. On aforesaid reason, the present application is devoid of merit and, hence, the same is dismissed.

#10. However, it is made clear that this order shall not preclude the applicant from availing the remedies which are available to him as per law. Order Date :- 8.4.2025 Vivek Kr.