Allahabad High Court
Ved Narayan Jaiswal & Ors. vs State Of U.P. & Anr. on 17 December, 2020
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 32 Case :- U/S 482/378/407 No. - 3112 of 2020 Applicant :- Ved Narayan Jaiswal & Ors. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Rajeiu Kumar Tripathi,Diwakar Singh Gautam,Nitin Kumar Mishra,Om Kumar Counsel for Opposite Party :- G.A. Hon'ble Narendra Kumar Johari,J.
1. Heard learned counsel for the applicant/petitioner, learned A.G.A. for the State and perused the record.
2. This petition under Section 482 Cr.P.C. has been filed for quashing of order of cognizance and summoning dated 09.09.2020, passed by learned Chief Judicial Magistrate, Bahraich in Case No.9298 of 2020 (State of U.P. Vs. Ved Narain Jaiswal and others) and charge sheet dated 14.08.2020. A further prayer for quashing of the entire proceedings of the aforesaid case, pending in the Court of Chief Judicial Magistrate, Bahraich pertaining to Crime/FIR No.0350/2020, under Sections 323, 504, 506, 325 IPC, Police Station Kotwali Dehat, District Bahraich has been made.
3. Learned counsel for the applicant has based his argument on the ground that according to law learned Magistrate has not applied his judicial mind for taking cognizance of offence, which is contrary to law. Hence, impugned order dated 09.09.2020 is liable to be quashed.
4. Learned A.G.A. has opposed the aforesaid prayer. However, he did not dispute that the impugned order is on printed proforma.
5. On the basis of First Information Report lodged by one Jaichand Singh under Crime/FIR No.0350/2020, under Sections 323, 504, 506 IPC, Police Station Kotwali Dehat, District Bahraich, after investigation, charge sheet has been filed under Sections 323, 504, 506, 325 IPC and the learned Chief Judicial Magistrate, Bahraich has passed the cognizance and summoning order dated 09.09.2020 upon the police report. It shows that cognizance order has been passed on the printed proforma by filling the date and sections.
6. The word cognizance is used to indicate the point of time when the Magistrate or Judge, first takes judicial notice of an offence. It is the application of judicial mind to the averments in the police report/complaint, that constitutes the cognizance. It is apparent on record that summoning order after taking cognizance on 09.09.2020 has been passed by the learned Chief Judicial Magistrate concerned on printed proforma by filling up the gap. Even, learned court could not paid attention that names of all the accused persons have not been mentioned in the order.
7. In the case of Basaruddin and others vs. State of U.P. and others 2011 (1) GIC 335 (ALLD.) (LB) the court has held that by filling the typed proforma, the accused has been summoned by the court in mechanical way. It is required by law that there must be application of judicial mind and Magistrate has to satisfy himself regarding prima facie case upon which cognizance can be taken and accused can be summoned. Apparently, the summoning order passed by the learned Magistrate suffers from non-application of mind while taking cognizance of the offence.
8. In Qavi Ahmad vs. State of U.P. and others Criminal Revision No. 3209 of 010 and Abdul Rasheed and others vs. State of U.P. and others 2010 (3) GIC 761 (ALLD.) it has been held that whenever, any police report/complaint is filed before Magistrate, it is mandatory for Magistrate to apply his mind to the fact stated in the report/complaint for taking cognizance and the Magistrate may summon the accused if he finds that prima facie there is sufficient material on record to proceed with the matter.
9. It has been held in the case of Arvind Pandey and others vs. State of U.P. and others Application U/s 482 Cr.P.C. No. 15372 of 2019 by this Court that judicial orders cannot be allowed to be passed in a mechanical manner either by filling in blank on a printed proforma or by affixing a ready made seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate. This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms.
10. In AIR 2012 SC 1747, Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr., the Apex Court has held that Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued.
11. In AIR 2015 SC 923, Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under :
"47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself....."
12. In Darshan Singh Ram Kishan v. State of Maharashtra, reported in MANU/SC/0089/1971: (1971) 2 SCC 654, it was held that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and, thereafter, takes judicial notice of the offence. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer........"
13. In the case of Fakhruddin Ahmad, the Hon'ble Supreme Court has observed that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". 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 title 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.
14. Although it is true that the Magistrate who is taking cognizance of an offence on the basis of complaint/police report need not to pass the detailed and reasoned order and it is also not needed to scrutinize the evidence which is available on record, but from the facts/materials available on record, it is required that the court has to apply his judicial mind for taking cognizance and issue summoning order.
15. In the case ofMegh Nath Gupta & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4^) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner.
16. In view of the above, the cognizance as well as summoning order passed by the learned Chief Judicial Magistrate, Bahraich on printed proforma by filling up the gaps is without application of judicial mind, is objectionable and deserves to be deprecated. Therefore, the impugned order is not legally sustainable and liable to be quashed at this stage.
17. Accordingly, the cognizance and summoning dated 09.09.2020, passed by learned Chief Judicial Magistrate, Bahraich in Case No. 9298 of 2020 (State of U.P. Vs. Ved Narain Jaiswal and others), relating to Crime/FIR No.0350/2020, under Sections 323, 504, 506, 325 IPC, Police Station Kotwali Dehat, District Bahraich is hereby set aside and the matter is remanded back to the learned Chief Judicial Magistrate, Bahraich to pass fresh order, upon the police report/charge sheet dated 14.08.2020, expeditiously, in accordance with law and as observed above.
18. Learned District Judge, Bahraich is directed to issue necessary direction to Chief Judicial Magistrate as well as other courts of Magistrate not to use any further printed proforma for taking cognizance and summoning accused persons.
19. The petition stands disposed of at the stage of admission.
Order Date :- 17.12.2020 ML/-