Neutral Citation No. - 2025:AHC:80886 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 9683 of 2025 Applicant :- Rajesh And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jeetendra Kesharwani,Sheikh Obaidullah Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard Sri Sheikh Obaidullah, learned counsel appearing on behalf of applicants and learned AGA for State. 2. The instant application has been preferred seeking quashing of bailable warrant/order dated 19.04.2024 and further orders issuing bailable warrant/order against the applicants in Criminal Case no. 2184/2019 "State of U.P. vs. Dinesh Ram and others", passed by learned Additional Chief Judicial Magistrate, Court no. 10, Azamgarh, arising out of Case Crime no. 158/2014, under sections 147, 332, 353 IPC and Section 7 Criminal Law Amendement Act, PS- Nizamabad, District Azamgarh. 3. The bailable warrant order has been challenged on several other grounds inter alia precisely on the ground in respect of the proceedings which has been not convened by learned court of Additional Chief Judicial Magistrate in strict compliance of the procedure. It is submitted by learned counsel for the applicants that although name of the applicant was available at the time of preferring charge sheet after due conduction of the investigation by concerned Investigating Officer preferred on dated 16.02.2015 but at the time of taking cognizance of offence by learned Additional Chief Judicial Magistrate in pursuance to accused who are mentioned in the charge sheet preferred by concerned Investigating Officer which has been perused by learned court concerned but in pursuance to cognizance of offence under sections 147, 332, 353 IPC and 7 CLA summoning order has been issued only in respect of Dinesh Rai, Satnarayan, Ashok, Sumai Devi, Smt. Chutki and Ramoti Devi only. There is hardly any summoning order issued against Rajesh S/o Vishwanath, Bindu @ Arvind S/o Sohit both respondent of village Bangaon, Police Station- Nizamabad, District Azamgarh but learned counsel for the applicants sought the attention of the Court over the order sheet dated 19.04.2024 available at page no. 54 through which it is transpired that service of summons has already been served upon applicants as mentioned in the order dated 19.04.2024 but it is the argument raised by learned counsel for the applicants that once the cognizance at the time of cognizance of offence has been taken up by learned court of Additional Chief Judicial Magistrate, the summoning orders have not been issued against the applicant under which circumstances the same has been shown as served. Needless to mention here that applicant never appeared before learned court of Additional Chief Judicial Magistrate, in pursuance to Criminal Case no. 2184 of 2019 (State of U.P. vs. Dinesh Ram and others). 4. Learned counsel for applicants submitted that order dated 19.04.2024 has been put under challenge through which bailable warrants have been issued against the applicants, once the cognizance of offence has not been taken in pursuance to the applicants as it has already been taken in pursuance to other co-accused who have been named in the charge sheet, there is hardly any occasion arises in favour of learned concerned court for ensuring presence of the applicants by way of issuing bailable warrants since the applicants were never summoned in pursuance to order dated 25.10.2018. 5. Per contra, learned AGA although vehemently opposed the prayer made through instant application by learned counsel for applicants but at the same time, did not disputed the fact which is apparent on face of record that at the time of passing order dated 25.10.2018 by learned Chief Judicial Magistrate/Civil Judge, Court no. 14, District Azamgarh although summoned other persons except applicants available in the instant application. 6. In view of aforementioned facts and circumstances, once it is crystal clear that at the time of passing order dated 25.10.2018 in pursuance to Section 190 of Cr.P.C. for taking cognizance of offence by learned concerned court, the summoning order has not been issued against the applicants and as such order dated 19.04.2024 is not sustainable in the eye of law for compelling the applicants to appear before Court once they were not summoned at the time of taking cognizance of offence by learned concerned court. 7. Impugned order dated 19.04.2024 is hereby set aside only in respect of applicants. However, it is made clear that learned concerned court will be at liberty to take fresh action in pursuance to report submitted by concerned Investigating Officer on dated 16.02.2015 in Case Crime no. 158 of 2014 whereupon cognizance of offence has been taken up by learned court concerned on dated 25.10.2018 by due process of law. 8. The instant application stands allowed accordingly. Order Date :- 15.5.2025 Shaswat Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad