Gaurav Dua v. State of U.P & Anr.

Hon'ble Saurabh Srivastava,J.

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

The present application has been preferred challenging the chargesheet dated 15.01.2024 and cognizance/summoning order dated 17.01.2024 along with entire proceedings of Criminal Case No.4091 of 2024 (State Vs. Gaurav Dua and others), arising out of Case Crime No.1039 of 2023, under Section 420, 406, 467, 468, 471, 120-B IPC and Section 66-D of I.T. Act, Police Station Indrapuram, District Ghaziabad, pending in the court of learned Chief Judicial Magistrate, Ghaziabad.

Learned counsel for applicant argued that applicant has falsely been implicated in the present by opposite party no.2 only to harass him since neither he was named in the FIR nor the accounts in which money was transferred, pertains to applicant. It has also been argued by learned counsel for applicant that nothing incriminating has been recovered from possession of applicant and also there is no independent witness of the alleged recovery. Learned counsel for applicant also submitted that there is hardly any evidence which may prove the involvement applicant in the present case and as such, no offence is made out against him. It has also been argued by learned counsel for applicant that without conducting fair investigation, the concerned Investigating Officer submitted chargesheet against applicant and also without considering the said facts and without applying its judicial mind, learned court concerned taken cognizance over the said chargesheet which is abuse of process of law and as such, same may be quashed.

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.

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.

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).

From the perusal of the material available on record in shape FIR, charsheet, statements recorded during investigation 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 482 Cr.P.C..

On aforesaid reason, the present application is devoid of merit and, hence, the same is dismissed. VIVEK KUMAR High Court of Judicature at Allahabad Order Date :- 28.7.2025 Vivek Kr.