Allahabad High Court
Smt. Dhanrawati Devi And 3 Ors vs State Of U.P. And Another on 10 January, 2020
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A. F. R. Court No. - 64 Case :- APPLICATION U/S 482 No. - 738 of 2020 Applicant :- Smt. Dhanrawati Devi And 3 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Narendra Deo Shukla,Pankaj Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Vakalatnama filed today by Sri Rajesh Kumar Pandey Advocate on behalf of the informant, is taken on record.
This application has been filed by the applicants to quash the chargesheet dated 29.10.2019 being criminal case No. 119 of 2019 (State of U.P. Vs. Prashant Tiwari and others) under Sections 323, 504, 506, 354, 147 IPC, P.S. Sujanganj, District Jaunpur, arising out of case crime No. 115 of 2019 and also to quash the cognizance as well as summoning order dated 18.11.2019 passed by Judicial Magistrate-Ist, Jaunpur.
Heard learned counsel for the applicants, learned counsel for the informant and the learned AGA.
Learned counsel for the applicants submitted that the learned Judicial Magistrate passed the impugned cognizance as well as summoning order on 18.11.2019 without application of mind. Thus, the order dated 18.11.2019 is unreasoned, unspecific, illegal and arbitrary and, thus, not sustainable in the eye of law. Learned trial court passed the order in very mechanical manner and in a routine way without discussion of allegation contained in the FIR and statement under Section 161 Cr.P.C. of the prosecution witness. Hence, the cognizance order passed by the Magistrate is an abuse of the process of the Court so cognizance order, is likely to be quashed.
Learned counsel for the applicants submitted that no offence at all under sections 323, 504, 506, 354, 147 IPC is made out against the applicants and the statement under Section 164 Cr.P.C. of the opposite party No. 2 is inherently, improbable and absolutely false and fabricated. In fact, she has not received any injury in the alleged occurrence but she has alleged that she was beaten by the applicants and further submitted that there is no any direct or indirect evidence and no any documentary evidence with regard to objectionable photograph of the opposite party No. 2 and others to support the prosecution version. It is further submitted that the husband of the opposite party N. 2, namely, Vivek Kumar Tiwari is a practising Advocate in Civil Court, Jaunpur and police official of the P.S. Sujanganj are under influence of him. On the influence of the husband of PW-2 Sujanganj Police registered the false and frivolous cases against the applicant. Further submits that the applicant used to live in Bombay to earn his livelihood and opposite party No. 2 and her husband lives in village and want to grab entire movable and immovable property of the applicants and further submitted that there is also civil dispute between applicant-side and opposite party No. 2-side. On account of civil dispute, the relation between both the parties are restrained and shower and on account of these reasons, impugned FIR has been lodged only for harassment of the applicants. On this ground learned counsel for the applicants submitted that charge sheet against the applicants is false and frivolous and vexatious so the charge sheet submitted by the Investigating Officer, is liable to be quashed.
First of all, I considered whether the cognizance order is passed by the Magistrate is liable to be quashed or not in this regard learned counsel for the applicants submitted that learned Magistrate passed the cognizance order without application of his mind.
Learned counsel for the petitioner relied upon paragraph Nos. 14 and 15 of the judgement of the Apex Court in the case of Fakhruddin Ahmad Vs. State of Uttranchal decided on 5th September, 2008 reported in [2008 (17) SCC 157] which are quoted below:-
"14.From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by `taking cognizance'. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.
15.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 little 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."
Learned counsel for the applicant also relied upon paragaraph Nos. 6 and 12 of the judgement passed by Hon'ble Allahabad High Court in the case of Akash Garg Vs. State of U.P. reported in [2011 (11) ADJ 849].
"6. It is well settled that the Magistrate is not bound by the conclusion of the Investigating Officer. He is competent under law to form his own independent opinion on the basis of the materials collected during the investigation. The Magistrate may or may not agree with the conclusion of the Investigating Officer. If the Investigating Officer submits charge sheet, in that eventuality the Magistrate may differ from the charge sheet and refuse to take cognizance by holding that no case is made out. In a case where the final report is submitted the Magistrate may on perusal of the materials placed in support of the final report opine that the conclusion of the Investigating Officer is not correct and the offence is made out. In that eventuality, the Magistrate may reject the final report and take cognizance of the offence.
12. It is also well settled that at the stage of taking cognizance of an offence, the Magistrate is not required to examine thoroughly the merits and demerits of the case and to record a final verdict. At that stage he is not required to record even reasons, as expression of reasons in support of the cognizance may result in causing prejudice to the rights of the parties (complainant or accused) and may also in due course result in prejudicing the trial. However, the order of the Magistrate must reflect that he has applied his mind to the facts of the case. In other words at the stage of taking cognizance what is required from the Magistrate is to apply his mind to the facts of the case including the evidence collected during the investigation and to see whether or not there is sufficient ground (prima facie case) to proceed with the case. The law does not require the Magistrate to record reasons for taking cognizance of an offence."
The present case need to be examined in the light of the aforesaid settled principal given by Hon'ble Apex Court as well as another cases cited by the learned counsel for the applicants namely, Kanchan Vs. State of U.P. (Application u/s 482 Cr.P.C. No. 45044 of 2019) and Mukund Lal Verma and another Vs. State of U.P. and another (Application u/s 482 Cr.P.C. No. 2307 of 2003).
What is meant by 'taking cognizance' in regard to an offence by a competent Magistrate is not defined or described in the Code of Criminal Procedure, 1973 (Cr.P.C.) or any other act. However the term has acquired a definite connotation through well settled judicial pronouncements.
The term 'taking cognizance' actually means 'become aware of', but in reference to a Court or a Judge, it means 'to take notice of judicially'. The term has no mystic significance in criminal law. In practice 'taking cognizance' means taking notice of an offence for initation of proceedings under Section 190 Cr.P.C.
'Cognizance' refers to the point when the court first takes judicial notice of an offence by not only applying its mind to the contents of the complaint/police report, but also proceeding further as provided further in Chapter XIV of the Cr.P.C.
Taking cognizance includes either taking steps to see whether there is basis for initiating a judicial proceeding or initiating a judicial proceeding against an offender by the Magistrate.
Ordinarily, a citizen can initiate criminal proceedings against an offence by two means. He may either lodge an FIR before the Police Officer (Station House Officer) if the offence is a cognizable one, or he may lodge complaint before a competent Judicial Magistrate irrespective of whether the offence is cognizable or non-cognizable. Any Magistrate of the first class and the duly empowered second class Magistrate may take cognizance of any offence for further proceedings.
As per Section 190(1) an empowered Magistrate may take cognizance of any offence-
a). Upon receiving a complaint of facts which constitute such an offence.
b). Upon a police report of such facts.
c). Upon information received from any person other than a police officer, or upon his own knowledge, that such an offence has been committed."
Thus the cognizance is taken when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any person regarding an offence.
The issuance of process by the court occurs at a subsequent stage duly after considering the materials placed before it. It happens when the Magistrate decides to proceed against the offender whom a prima facie case is clearly made out. Taking cognizance of an offence is not equivalent to issuance of process: issuance of process takes place only after taking cognizance of the offence. When a Magistrate applies his mind for issue of process, he must be held to have taken cognizance of the offences the complaint put forth.
The cognizance and summoning order passed by learned Magistrate dated 18.11.2019 is read as under:-
"???????? ??0??0 ????? ??????, ?0??0 115/19, ??0??0 119 ????? ???? ???????? ?????? ???? ????? ???, ?????? 18.11.19- ?? ???? ???? ??????? ???? ????????? ?????? ??? ?????? ?????? ??? ??????? ?????????? ??????? ?????? ???? ?????, ???? ????? ??????, ?????? ????? ??????, ?????? ????? ???? ?? ??????? ???????? ???? 147, 323, 504, 506, 354 ??0??0??0 ? ????????? ??????? ???? ?? ??????? ???????? ???? 147, 323, 504, 506 ??0??0??0 ??? ???? ???? ???????? ???? ???? ????? ????? ????? ????????? ?? ????? ??????? ????? ?????????? ????????? ?? ??????? ??????? ?????? ??? ????? ?? ?????????? ???? ???? ?? ???? ???????? ??? ??????? ?????????? ???? ???? ??? ???? ??????? ??? ?????????? 17.12.19 ?? ????? ????? ??? ???"
So all the case laws relied by the learned counsel for the applicants, are not applicable in the present case.
At the stage of taking congnizance, Magistrate can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In this present case, learned trial court clearly express his opinion that he perused all the records and clearly indicated that the material placed before him are sufficient to proceed with the case.
In the present case detail cognizance order as well as summoning order is passed by the learned Magistrate with judicial application of mind as the same reflects that the learned Magistrate has applied his mind to material available on record and materials are sufficient to proceed against the applicants. The cognizable order is not a proforma order, every aspect is touched by the learned Magistrate and applicants failed to adduce any evidence which caused prejudice to them so cognizance order is perfectly valid and there is no occasion to quash the same.
From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge according to the provisions prescribed in Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the cognizance order as well as summoning order and charge sheet hereby refused.
However, it is provided that if the applicants appear and surrender before the court below within 15 days from today and apply for bail, then the bail application of the applicant be considered and decided expeditiously in view of the settled law laid by Hon'ble Supreme Court. For a period of 15 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 10.1.2020 Ankita