Allahabad High Court
Viresh Kumar @ Viri Singh And 6 Others vs State Of U.P. And Another on 13 October, 2022
Author: Ajai Tyagi
Bench: Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- APPLICATION U/S 482 No. - 17921 of 2022 Applicant :- Viresh Kumar @ Viri Singh And 6 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Hemendra Kumar,Ashutosh Pandey Counsel for Opposite Party :- G.A. Hon'ble Ajai Tyagi,J.
Heard learned counsel for the applicants as well as learned A.G.A. for the State and perused the record.
This application u/s 482 Cr.P.C. has been filed by the applicants for quashing the charge sheet dated 17.06.2020 and summoning/cognizance order dated 27.08.2020 passed by Additional Chief Judicial Magistrate, court No.11 in Case No.351 of 2020 arising out of Case Crime No.95 of 2020 (State Vs. Ashok Kumar and others), under Sections 147, 160, 188, 269, 270, 323, 336, 504, 506 IPC and 3/4 Epidemic Diseases Act and 7 C.L.A. Act, Police Station- Saiya, District- Agra.
It is submitted by learned counsel for the applicants that impugned cognizance/summoning order has been passed on a printed proforma by filling the blanks and it has been passed without application of judicial mind and as such, it is not sustainable in the eye of law. Learned counsel for the applicants has placed reliance on the judgment of this Court in the case of Ankit Vs. State of U.P. and another, reported in 2009(9) ADJ page 778.
On the basis of aforesaid judgment, it has been submitted by learned counsel for the applicants that summoning of accused in criminal case is a serious matter and the order impugned reflects that the Magistrate had not applied its judicial mind, as in the present case the impugned cognizance/summoning order has been passed on printed proforma, which clearly indicates that the same has been passed without applying judicial mind and the learned Magistrate only put its signature at the bottom of order.
On the other hand, learned AGA has submitted that summoning order has been passed by the learned Magistrate after considering the material which are available on record, but he could not dispute the fact that the order taking cognizance has been passed on the printed proforma.
In the case of Sunil Bharti Mittal v. Central Bureau of Investigation, AIR 2015 SC 923, the Hon,ble Apex Court was pleased to observe in paragraph no.47 of the judgment 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.."
In the case of Darshan Singh Ram Kishan v. State of Maharashtra , (1971) 2 SCC 654, the Hon'ble Court was pleased to observe 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. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report."
In the case of Ankit Vs. State of U.P. And another passed in Application U/S 482 No.19647 of 2009 decided on 15.10.2009, this Court was pleased to observe in paragraph No.8 of the judgement as under:-
"8. In the beginning, the name of the court, case number, state vs. ....... under section ......... P.S. ......... District ......... case crime No. ........ /2009 also have been printed and blanks have been filled up by mentioning the case number, name of the accused, section, P.S. District etc. by some employee. Below afore cited printed matter, the following sentence has been mentioned in handwriting "???????? ????? ?? ????????? ??0 ???? ???????? ?????? Crl. Writ No. 19559/08 ????? ???? ????? ??? ????? ???? ?????? 5.11.08 ?????? ???? ???? ??????? ???? ?? ?????? ???"
Below aforesaid sentence, the seal of the court containing name of Sri Talevar Singh, the then Judicial Magistrate-III, has been affixed and the learned magistrate has put his short signature (initial) over his name. The manner in which the impugned order has been prepared shows that the learned magistrate did not at all apply his judicial mind at the time of passing this order and after the blanks were filled up by some employee of the court, he has put his initial on the seal of the court. This method of passing judicial order is wholly illegal. If for the shake of argument, it is assumed that the blanks on the printed proforma were filled up in the handwriting of learned magistrate, even then the impugned order would be illegal and invalid, because order of taking cognizance of any other judicial order cannot be passed by filling up blanks on the printed proforma. Although as held by this Court in the case of Megh Nath Guptas & 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. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind."
In the case of Kavi Ahmad Vs. State of U.P. and another passed in Criminal Revision No. 3209 of 2010, wherein order taking cognizance of offence by the Magistrate under Section 190(1)(b) on printed proforma without applying his judicial mind towards the material collected by the Investigating Officer has been held illegal.
In the case of Abdul Rasheed and others Vs. State of U.P. and another 2010 (3) JIC 761 (All). The relevant observations and findings recorded in the said case are quoted below:-
"6. Whenever any police report or complaint is filed before the Magistrate, he has to apply his mind to the facts stated in the report or complaint before taking cognizance. If after applying his mind to the facts of the case, the Magistrate comes to the conclusion that there is sufficient material to proceed with the matter, he may take cognizance. In the present case, the summoning order has been passed by affixing a ready made seal of the summoning order on a plain paper and the learned Chief Judicial Magistrate had merely entered the next date fixed in the case in the blank portion of the ready made order. Apparently the learned Magistrate had not applied his mind to the facts of the case before passing the order dated 20.12.2018, therefore, the impugned order cannot be upheld.
7. 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. Therefore, this practice must be stopped forthwith."
From bare perusal of impugned cognizance/summoning order, it is apparent that it has been passed on a printed proforma by filling the blanks and it appears that the blanks were filled up by some staff of the concerned Magistrate and the concerned Magistrate has only put its initial at the bottom of summoning order.
The law on this point is well settled that prior to taking cognizance and issuing summons to the accused-persons, the concerned Magistrate has to apply its judicial mind and that the cognizance/summoning order cannot be passed in a mechanical manner.
In view of above, since impugned cognizance/summoning order has been passed on a printed proforma by filling the blanks without application of judicial mind and as such, it is not sustainable in the eye of law.
Accordingly the application under section 482 Cr.P.C. is allowed. The impugned cognizance/summoning order dated 27.08.2020 is hereby quashed.
The concerned Magistrate is directed to pass afresh order regarding cognizance as well as summoning of the applicants in the aforesaid case in accordance with law, after applying its judicial mind within a period of two months from the date of production of a copy of this order.
Order Date :- 13.10.2022 Ashutosh Pandey