VIJAY PRAKASH PATHAK,J. - (1.) THE present petition has been filed with the prayer to quash the charge sheet submitted in case Crime No. 554/12(Case No. 308 of 2012) u/s 498A IPC and 3/4 D.P.Act P.S. Karimuddinpur District Ghazipur in which cognizance has been taken by the learned Magistrate vide order dated 3.10.2012.
(2.) HEARD learned counsel for the applicant as well as learned AGA for the State. Learned counsel for the applicant has mainly contended that the learned Magistrate has taken cognizance in the case without perusing the case diary and applying his mind. It is submitted that according to the order impugned dated 3.10.2012, the charge sheet was received from the office of C.O., cognizance taken, court is vacant. Let the case be registered and summons be issued against the accused and the file was sent to prepare the copies. It is submitted that the learned Magistrate has not perused the charge sheet and other materials including case diary of the case. Hence the order of taking cognizance and issuing summons is against the legal procedure. In support of his contention he placed reliance upon the decision of this court given in Akash Garg Vs. State of U.P. and others[2012(76) ACC 103].
(3.) I have considered the said argument as well as the decision of this Court given in Akash Garg Vs. State of U.P. and others(Supra). In the said decision, this court has also considered the judgment of the Apex Court in the case of Fakruddin Ahmad V. State of Uttaranchal and another reported in 2009(64) ACC 774. The Hon'ble Apex Court in the aforesaid verdict in paragraph 15 has held as under: "15. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender." ;