Allahabad High Court
Rajesh Kaushal @ Kakau @ Rajesh Kumar vs State Of U.P. & Another on 24 March, 2021
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 31 Case :- U/S 482/378/407 No. - 1011 of 2021 Applicant :- Rajesh Kaushal @ Kakau @ Rajesh Kumar Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Saurabh Srivastava Counsel for Opposite Party :- G.A. Hon'ble Narendra Kumar Johari,J.
Learned counsel for the applicant and learned A.G.A. for the State are present.
This petition under Section 482 Cr.P.C. has been filed for quashing of the charge sheet dated 23.10.2020 in Case Crime No. 248 of 2020 under Sections 354, 323, 504, 506, 452 IPC, P.S. Kotwali Salon, District Raebareli.
During the argument, learned counsel for the applicant has submitted that he is going to press his application under Section 482 Cr.P.C. to quash the summoning order which is on record as Annexure-2.
Learned counsel for the applicant has further submitted that in the case F.I.R. has been lodged by complainant under Sections 354, 323, 504, 506, 452 IPC, P.S. Kotwali Salon, District Raebareli against the applicant. After the investigation, charge-sheet has been submitted by investigating officer on 23.10.2020 and learned Magistrate, F.T.C. (Junior Division) Raebareli has taken cognizance of offence on 15.1.2021. The said order dated 15.1.2021 is on printed proforma and even the name of accused, who has been issued summoned by the court, has not been mentioned in the order. The aforesaid summoning order has been passed by the court concerned without application of judicial mind and is liable to be quashed. In support of his case, he has submitted law laid down by this Court in Application under Section 482 No. 683 of 2021 (Ved Krishna and State of U.P. and others) dated 11.2.2021.
Learned A.G.A. has opposed the aforesaid prayer. However, he did not dispute that the impugned order is on printed proforma.
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 15.1.2021 has been passed by the Magistrate concerned on printed proforma by filling up the gap, even without mentioning the name of accused.
Learned counsel for the applicants placed reliance on the case laws Basaruddin and others vs. State of U.P. and others 2011 (1) GIC 335 (ALLD.) (LB) in which 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.
Learned counsel for the applicants has also placed reliance on the judgment passed in Kavi 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.) 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. 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.
In view of the above, the summoning order dated 15.1.2021 is hereby quashed and matter is remanded back to the court concerned to pass a fresh order upon police report dated 23.10.2020, expeditiously in accordance with law.
At this stage, the petition is allowed.
Order Date :- 24.3.2021 AKK