Arun Sondhi vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 7360 of 2025
A.F.R.
Arun Sondhi
.....Revisionist(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Revisionist(s) : Kamlesh Kumar Dwivedi, Surendra Nath
Mishra
Counsel for Opposite Party(s) : G.A., Pranshu Dwivedi, Ram Prakash
Dwivedi, Ravindra Sharma

Court No. - 86
HON'BLE SUBHASH CHANDRA SHARMA, J.
Supplementary affidavit filed by learned counsel for the revisionist today is
taken on record.
Heard Sri Kamlesh Kumar Dwivedi, learned counsel for the revisionist as
well as Sri Ravindra Sharma, learned counsel for the opposite party
alongwith learned A.G.A. for the State and perused the material on record.
This criminal revision has been filed against the order dated 26.09.2025 in
Crime No.390 of 2024, under Sections 420, 467, 468, 471, 406, 506, 120B
I.P.C., Police Station Hari Parwat, District Agra passed by learned C.J.M.,
Agra by which learned court has refused to take cognizance of the offence
against the opposite party no.2 on an application filed by her for not taking
the cognizance and to discharge.
It is submitted by learned counsel for the revisionist that in this case charge
sheet was filed before the learned court concerned and at the time of taking
cognizance of the offence an application on the part of the opposite party
no.2 was filed before the learned court making prayer not to take cognizance
of the offence and to discharge her and her husband Prakhar Garg. Learned
trial court after hearing the opposite party no.2 took cognizance of the
offence against Navdeep Mehta and Prakhar Garg but refused to take
cognizance of the offence against the opposite party no.2 Smt. Rakhi Garg

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2
and thus allowed the application for not taking of cognizance and discharge.
Further submitted that before passing the order in question no opportunity of
hearing was provided to the informant/the prosecution but order was passed.
He also submits that at the stage of Section 239 Cr.P.C. (discharge)
opportunity of hearing to the prosecution is also a must and then order is to
be passed but learned trial court has committed error in passing the order
without giving the opportunity of hearing to the informant/prosecution. He
also submitted that the Hon'ble Supreme Court in the case of Minu Kumari
vs. State of Bihar 2006 Law Suit (SC) 299 in para no.12 & 14 clearly
observed that the informant must have been given opportunity of hearing if
he decides not to take cognizance and to drop the proceedings. In this way,
the order passed by learned trial court being erroneous is liable to be set
aside.
Learned counsel for the opposite party as well as learned A.G.A. opposed
the prayer as aforesaid and contended that in this case learned C.J.M has
passed the order in question on the basis of material collected during the
course of investigation by the I.O. and no offence was found to be made out
against Smt. Rakhi Garg that is the reason the learned court refused to take
the cognizance of the offence against Smt. Rakhi but could not dispute the
fact that no opportunity of hearing either to the informant or to the
prosecution was given by the learned court at the time of passing the order in
question as is apparent from the judgment itself.
From arguments of both the parties two questions emerge to decide :-
(i) whether the court may decide not to take cognizance of
offence without giving an opportunity of hearing to the
informant, though charge sheet has been filed by the police?
(ii) whether at the stage of considering discharge application,
informant is entitled for an opportunity of hearing?
On perusal of record and the order dated 26.09.2025 passed
Question No.I
by learned C.J.M., it transpires that in the aforesaid case after investigation
charge sheet was filed by the police in the court against Navdeep Mehta,
Prakhar Garg & Smt. Rakhi Garg. At the stage of taking cognizance of
offence an application for not taking cognizance and discharge from the
offence was moved by opposite party no.2 Smt. Rakhi Garg before the
learned court on which the impugned order was passed without giving an

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3
opportunity of hearing either to the informant or to the prosecution. The
learned court concerned has nowhere mentioned in the order either to give
notice to the informant or such opportunity given to the prosecution. The
Hon'ble Supreme Court in the case of
Minu Kumari vs. State of Bihar
in para no.12 & 14 has clarified when the court
2006 Law Suit (SC) 299
decides not to take cognizance of an offence and to drop the proceedings,
notice to the informant and grant of opportunity of being heard in the matter
becomes mandatory. Para 12 & 14 are as under :-
"12. The informant is not prejudicially affected when the
Magistrate decides to take cognizance and to proceed with
the case. But where the Magistrate decides that sufficient
ground does not subsist for proceeding further and drops
the proceeding or takes the view that there is material for
proceeding against some and there are insufficient grounds
in respect of others, the informant would certainly be
prejudiced as the First Information Report lodged becomes
wholly or partially ineffective. This Court in Bhagwant
Singh v. Commr. of Police, (1985 (2) SCC 537) held that
where the Magistrate decides not to take cognizance and to
drop the proceeding or takes a view that there is no
sufficient ground for proceeding against some of the
persons mentioned in the First Information Report, notice to
the informant and grant of opportunity of being heard in the
matter becomes mandatory. As indicated above, there is no
provision in the Code, for issue of a notice in that regard.
14. As decided by this Court in Bhagwant Singh's case
(1985 (2) SCC 537), the Magistrate has to give the notice to
the informant and provide an opportunity to be heard at the
time of consideration of the report. It was noted as follows:-

"....The Magistrate must give notice to the informant and
provide him an opportunity to be heard at the time of
consideration of the report..."
Thus the court forming opinion for not to take cognizance of offence on the
basis of charge sheet was under obligation to give notice to the informant
and then to pass order in this regard. Failure on the part of the court caused
prejudice to the informant which makes the order inappropriate.
Question No.II At the stage of discharge u/s 239 Cr.P.C. the prosecution is

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4
given an opportunity of hearing. If such opportunity is denied, the order
passed in this regard will be illegal. Under Section 239 Cr.P.C., it is clearly
provided that the Magistrate will decide the application for discharge after
giving the prosecution and accused the opportunity of being heard. Section
239 Cr.P.C. runs as under :-
"If, upon considering the police report and the documents sent
with it under section 173 and making such examination, if any, of
the accused as the Magistrate thinks necessary and after giving
the prosecution and the accused an opportunity of being heard,
the Magistrate considers the charge against the accused to be
groundless, he shall discharge the accused, and record his
reasons for so doing."
Since, the order in question has been passed without giving an opportunity
of hearing to the informant and the prosecution, therefore, it being illegal
and inappropriate is liable to be set aside.
Thus, the order dated 26.09.2025 is, hereby, set aside to the extent of
opposite party no.2 Smt. Rakhi Garg. The learned C.J.M. concerned is
directed to decide the application moved by opposite party no.2 Smt. Rakhi
Garg for not taking cognizance of the offence after giving an opportunity of
hearing to the informant as well as the prosecution.
Accordingly, this criminal revision is
allowed.
May 13, 2026
Ashok Gupta
(Subhash Chandra Sharma,J.)
Digitally signed by :-
ASHOK KUMAR GUPTA
High Court of Judicature at Allahabad