Uttarakhand High Court
Haneef Malik vs State Of Uttarakhand And Another on 5 September, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc. Application No. 894 of 2019
(Under Section 482 of Cr.P.C.)
Haneef Malik ... Applicant
Vs.
State of Uttarakhand and Another ... Respondents
Advocate: Mr. Amar Murti Shukla, Advocate, for the applicant.
Mr. T.C. Aggarwal, Deputy Advocate General, along with Ms.
Lata Negi, Brief Holder, for the State.
Hon'ble Sharad Kumar Sharma, J.
This C-482 Application is being pressed by the present applicant on a very short premise with regard to the manner in which the cognizance have been taken by the learned Court of Chief Judicial Magistrate, district Udham Singh Nagar, in Criminal Case No. 7353 of 2018, State Vs. Haneef Malik, whereby the present applicant has been summoned to be tried, for his alleged involvement in commission of the offences under Section 3/4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. The solitary argument, which has been extended by the learned counsel for the applicant is, that the summoning order, which is on a format, is without an application of mind nor the same is reflected from the order itself that the Court prior to passing of the summoning had applied its rational, based on material before it.
2. Brief facts of the case are, that an FIR, being FIR No. 446 dated 20.12.2017, was got registered by the complainant Jagdhish Dhakriyal, for the alleged involvement of the named accused person i.e. the 2 present applicant herein, for his alleged involvement in commission of the offence under Section 3/4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
3. The learned counsel for the applicant has submitted that if the summoning order itself is taken into consideration in its specified format, which runs in apparent contravention to the judgment of the Hon'ble Apex Court, reported in 1998 (5) SCC 749, Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, and that of the judgment as rendered by the Hon'ble Apex Court, reported in 2015 (4) SCC 609, Sunil Bharti Mittal Vs. Central Bureau of Investigation, and the 2013 (4) SCC 505, GHCL Employees Stock Option Trust Vs. India Infoline Ltd., as well as the judgment of the coordinate Bench of the Allahabad High Court as reported in 2021 (114) ACC 125, Vishnu Kumar Gupta and Another Vs. State of U.P. and Another.
4. The factual backdrop of the case is, that in pursuance to the registration of the aforesaid FIR, the matter was put to investigation and a Chargesheet, being Chargesheet No. 8 dated 10.12.2018, was got registered and submitted by the Investigating Officer, on which the cognizance have been taken by the Court of Chief Judicial Magistrate, district Udham Singh Nagar.
35. It has been submitted by the learned counsel for the applicant, that in accordance with the provisions contained under Section 173 of the Code of Criminal Procedure, where the legislature has used the words "taking of cognizance" of an offence on a report which has been submitted by the police, it has a wider social repercussion and that is why the cognizance, which would in its literal sense, would mean that there has had to be an apparent reflection of an authority, who is ceased with the judicial powers, to try an applicant for an offence, who has had to apply its mind, in order to show its consideration, or the material before it, which should be assessed by the Court before could have necessitated summoning of an accused person for the commission of an offence.
6. Apparently, in the instant case, the summoning order, which has been issued by the Court is in a specified format, which doesn't even reflect that there was a consideration of any materials which were placed before the Court nor does it reflect an application of mind as to how, the material which was placed before the Court, would have had a bearing which could have necessitated the summoning of an accused for being tried for an offence, because as per the Hon'ble Apex Court's judgment rendered in Pepsi Food Ltd. (supra), it has laid down, that summoning of an accused person for being tried in a criminal offence has a serious social consequences and it should not be done in a careless manner by the judicial officer, who takes cognizance to the chargesheet submitted by the 4 police officials, because it would always have very wide social stigmatic effect, on the person who has been summoned by the Criminal Court, for being tried for a criminal offence.
7. Submitting of the summoning order on a pre drafted format by filling in the blanks, in the absence of there being any reason, assigned to it, which could obviously not be there because it only fill in the blanks which has been made by the Court, hence it cannot be said that it justifies the test of the language used in the provisions under Section 173 of the Cr.PC for taking of cognizance.
8. On perusal of the ratios laid down by the Hon'ble Apex Court, it clearly reveals that the cognizance of an offence, is not only taken for the purposes of issuing processes to the accused, but since it is a judicial notice, which attributes to an involvement of an accused in commission of a criminal offence, it has had to reflect an application of mind.
9. The Hon'ble Apex Court, in its judgment as reported in 2012 (5) SCC 424, Bhushan Kumar Vs. State (NCT of Delhi), while dealing with the implications of Section 204 of the Cr.PC, the Court took a contrary view that an explicit reasoning for issuance of summon may not be a mandate, which requires an elaborate deliberation for necessity of the summoning of a person. But the said judgment has carved out an exception, that there has had to be at least a reflection 5 of a rationale opinion drawn by the Magistrate for taking cognizance of an offence and that in itself where cognizance means, taking a judicial note of a criminal Act, it has had to be obviously followed with the reasons to summon a person.
10. The Hon'ble Apex Court, in yet another judgment in Sunil Bharti Mittal (supra), which has been relied by the learned counsel for the applicant, particularly, he has drawn the attention of this Court to the contents of para 47 of the said judgment, which is extracted hereunder:-
"47. We have already mentioned above that even if the CBI did not implicate the Appellants, if there was/is sufficient material on record to proceed against these persons as well, the Special Judge is duly empowered to take cognizance against these persons as well. Under Section 190 of the Code, any Magistrate of first class (and in those cases where Magistrate of the second class is specially empowered to do so) may take cognizance of any offence under the following three eventualities:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
This Section which is the starting section of Chapter XIV is subject to the provisions of the said Chapter. The expression "taking cognizance" has not been defined in the Code. However, when the Magistrate applies his mind for proceeding Under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and Ors.: (2008) 2 SCC 492 in the following words:
19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of: and when used with reference to a court or a Judge, it connoted "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of 6 an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. Taking Cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence."
11. In fact, if para 47 of the said judgment is taken into consideration, it has had to be read in consonance to the judgment of the Hon'ble Apex Court, reported in 2008 (2) SCC 492, S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and others, wherein in its para 19, the Hon'ble Apex Court has dealt with as to what significance would the word "cognizance" would have in the criminal law when a person is required to be summoned. The relevant para No. 19 of the said judgment is extracted hereunder:-
"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a Court or a Judge, it connotes "to take notice of judicially". It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone."
12. In fact, the distinction, which has been drawn by the Hon'ble Apex Court is, that the cognizance doesn't mean making a person aware of drawing of a criminal proceeding against him, but rather, its basic intention is, that the person who has been summoned, should also be known with the reasons as to why he has been summoned and its justification and for what nature of offence and that too based on what material. All these there facets of it, as per the opinion of this Court, it contemplates an application of mind and a formal 7 explanation of a judicious consideration, it is not a mere procedural formality of an action to be taken for issuance of summon.
13. In fact, in the matters of Sunil Bharti Mittal (supra), the Hon'ble Apex Court has further gone to consider the aspect that the cognizance of an offence is sine qua non to the satisfaction, which becomes imperative when a complaint or a police report is taken as to be a basis to call for an accused person to participate in the criminal proceedings. Para 48 of the said judgment is extracted hereunder:-
"48. Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."
14. Rather, in the case of Pepsi Food Ltd. (supra), the Hon'ble Apex Court, in its para 26 has laid down that as per the nomenclature used under the legislature for the term "cognizance", what bearing will it have and the scope of scrutiny under Section 482 or under Article 226 of the Constitution of India, has had to be made in the light of the parameters laid down in para 28 of the said judgment, which had laid down, 8 that as a consequence of issuance of a summoning order, it's a criminal proceeding, which is said to motion against an accused person. In that eventuality, where a criminal proceeding is being said to be put to motion, it becomes all the more imperative and an unavoidable responsibility of the Court, that it ought to have reflected its application of mind in the summoning order with regard to the set of allegations, the basis and the reasons for summoning, the set of allegation leveled in the charge sheet, and more particularly, there has had to be an inference, which has to be drawn by the Court, that on summoning of a person and after being tried, there is a greater possibility of a person being convicted for the offences, for which he has been summoned. Meaning thereby, the Magistrate concerned, who is ceased with the judicial proceedings, is not a mere expectator of the documents produced before it. He has had to carefully scrutinized the evidence and then put a question to himself in order to justify the summoning order, which is not reflected in the impugned order in question.
15. The Hon'ble Apex Court, in para 13 and 19 of the judgment as reported in GHCL Employees Stock Option Trust (supra), was similarly dealing with almost an akin situation, particularly, as dealt with in para 19 of the said judgment, as to under what circumstances, summoning order would be justified by the Court. Para 19 of the judgment which has been foundationed upon yet another judgment of the Hon'ble Apex Court in relation to Thermax Limited and 9 others Vs. K.M. Johny and others, reported in 2011 (13) SCC 412, the Hon'ble Apex Court, in the aforesaid judgment has laid down the wider parameters which could be derived by extracting implication of para 38 and 39 of the Thermax Limited (supra). Para 19 of the GHCL Employees Stock Option Trust (supra), is extracted hereunder:-
"19. In the order issuing summons, the learned Magistrate has not recorded his satisfaction about the prima facie case as against respondent Nos.2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them. Recently, in the case of M/s.Thermax Ltd. & Ors. vs. K.M. Johny & Ors. 2011 (11) SCALE 128, & ors. while dealing with a similar case, this Court held as under :-
"38. Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant-Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex-Chairperson, Ex- Directors and Senior Managerial Personnel of appellant No.1 - Company, who do not have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role
39. Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of 'vicarious liability' is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant-Company."
16. In view of the aforesaid principle ratios laid down by the Hon'ble Apex Court and which was later on reiterated by the coordinate Bench of Allahabad High Court in the matters of Vishnu Kumar Gupta & Another (supra), the reference of which has been made by the learned counsel for the applicant in relation to the contents of paras 5, 10 and 11, this 10 Court is of the view that it is not a customary exercise of powers which is undertaken by the Criminal Courts, where a person could be customarily summoned on a formatted summoning order, which does not even hereby reflect an application of mind, in order to prima facie establish the engagement of an accused person for the commission of offences, for which he has been summoned and this is the defect, which is apparent from the impugned summoning order, which is under challenge before this Court. Para 5, 10 and 11 of the said judgment of the Allahabad High Court are extracted hereunder:-
"5. It has been further submitted that the impugned summoning order dated 22.12.2018 is not a judicial order as it has been passed on a printed proforma without recording any reasons in support of satisfaction for taking cognizance against the applicants and merely the case, Section, date of the order and date of the summon have been filled.
10. At this juncture, it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the Cr.P.C., is concerned and the perusal of the case law mentioned herein below would clearly reveal that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since, it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the material collected by the Investigating Officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject.
11. 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 but it is nowhere mentioned in 11 the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."
17. In that eventuality, and for the reasons already recorded above in the light of the settled principles of law, in the context of as to what does literal connotation of word 'cognizance', would have under the criminal law, the formatted summoning order which has been issued without application of mind, would not be sustainable. Hence, the summoning order dated 08.08.2018, as it was passed in Criminal Case No. 7353 of 2018, State Vs. Haneef Malik, would hereby stand quashed. C-482 Application is, accordingly, allowed.
18. However, the matter is remitted back to the Court of Chief Judicial Magistrate, district Udham Singh Nagar, to reconsider the online material placed before it, in order to justify the necessity of summoning the applicant for taking cognizance of the offence under Section 3/4 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and then pass a reasoned order, if at all, it is required.
19. Accordingly, present C-482 Application is allowed and the summoning order is hereby stand quashed, subject to the aforesaid liberty.
(Sharad Kumar Sharma, J.) 05.09.2022 Mahinder/