Allahabad High Court
Raj Kumar Yadav And 2 Others vs State Of U.P. And Another on 23 November, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- APPLICATION U/S 482 No. - 13521 of 2020 Applicant :- Raj Kumar Yadav And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Kailash Pati Singh Yadav Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.
Heard Sri Kailash Pati Singh Yadav, learned counsel for the applicants, Sri Nitin Kesarwani, learned A.G.A. for the State and perused the records.
In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereunder, the case is being disposed of finally at admission stage, without putting notice to opposite party no. 2.
Applicants have invoked the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire proceedings of criminal case No. 281 of 2020 (State vs. Daya Ram) arising out of Case Crime No. 0002 of 2019, under Section 420, 467, 468, 471, 504, 506, 120-B IPC, Police Station- Kerakat, District- Jaunpur, pending in the Court of Additional Chief Judicial Magistrate III, Jaunpur as well as summoning order dated 17.3.2020.
Record reveals that an FIR has been lodged by the first informant/opposite party no. 2 with respect to forgery committed by the accused applicants by taking money more than Rs. 10 Lakh from him in the name of providing employment to his son. After investigation, the investigating officer submitted charge-sheet dated 24.1.2020 bearing charge-sheet no. 25/2020 against all the accused applicants under Section 420, 466, 468, 471, 504, 506 & 120-B I.P.C. The court below has taken cognizance of the offence under Section 190(1)(b) Cr.P.C. and issued summoning order dated 17.3.2020 against the applicants to face criminal trial.
Learned counsel for the applicant has confined his argument only with respect to the legality and validity of the summoning order dated 17.3.2020 and submitted that the court below has passed the summoning order in a mechanical manner, without applying its judicial mind, on a printed format where the name of the accused applicants, details of case crime and date fixed in the matter have been filled up by hand in blank spaces. In issuance of process under Section 204 Cr.P.C. the trial court should exercise its power sparingly and consciously, which must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto. It is further submitted that while issuing the summoning order, the trial court has failed to comply the dictum of the Hon'ble Supreme Court passed in various cases that summoning in criminal case is a serious matter and the court below, without dwelling into material and visualizing the case on the touch stone of probability, should not summon accused to face criminal trial. It is also submitted that the court below has failed to consider the materials placed before it along with charge-sheet and illegally issued the summoning order in a mechanical way. In support of the contention, learned counsel for the applicants has relied upon several judgements of this Court.
Saurabh Dewan vs. State of U.P. passed in Criminal Misc. Application No. 8618 of 2010 decided on 17.3.2010.
Rishipal & others Vs. State of U.P. And Another [2019(3)ADJ 699] Ankit Vs. State of U.P. And Another reported in [2009(9) ADJ 778] Shakuntala Devi Vs. State of U.P. And 4 others passed in Application U/s 482 No. 11232 of 2018 Avdhesh Vs. State of U.P. And Another reported in [2019(6) ADJ 667] Dushyant Kumar Vs. State of U.P. And Others passed in Application U/s 482 No. 7206 of 2020 Ashu Rawat Vs. State of U.P. And Another passed in Application U/s 482 No. 13883 of 2020 Vishnu Kumar Gupta & others vs. State of U.P. and another passed in Application U/s 482 No. 41617 of 2019 decided on 11.11.2020.
Per contra, learned A.G.A., however, has opposed the application and submitted that the court below has rightly passed the summoning order after considering the charges made in the charge-sheet and the material submitted with it. Further submission made by learned A.G.A. is that though the summoning order is a short and on a printed format, but the Magistrate, after applying his judicial mind and finding sufficient materials on the record, has passed the summoning order against the applicants to face trial. He also submits that there is no illegality, infirmity or irregularity in the impugned summoning order which requires interference by this Court in exercise of extra-ordinary jurisdiction of this Court under Section 482 Cr.P.C.
I have considered the submissions made by learned counsel for the parties.
The provisions relating to the power of the police to investigate into matter of crime and the procedure to be adopted by them in this respect are enshrined in Chapter XII which is captioned as "Information to the police and their powers to investigate". Under the scheme of the Code, investigation is required to take place into a cognizable offence and investigation must be carried out and completed without delay. The investigation part is, however, left in entirety to the police and there is no scope of interference with the same. During investigation, the investigating officer can collect sufficient materials to prosecute the accused and on the basis of the material, he can submit a charge-sheet/final report under Section 173(3) Cr.P.C. and refer the matter to the concerned Magistrate along with collected material for taking cognizance.After submission of report under Section 173(3) Cr.P.C. by the police cognizance of offence should be taken by the Magistrate under Section 190(1)(b) Cr.P.C. After taking cognizance of offence Magistrate is empowered to issue process against the accused under Section 204 Cr.P.C.
In the matter of Darshan Singh Ram Kishan v. State of Maharashtra reported in (1971) 2 SCC 654, Hon'ble Supreme Court has expounded that there is no set of pattern to be followed for taking the cognizance and 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 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 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.
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."
It is well settled that before taking cognizance of an offence, it is imperative for the Magistrate to take notice of the accusations and apply his mind to the allegations made in the complaint or in the police report or the information received from the sources other than the police report, as the case may be and the material filed therewith. It is also well settled that when the Magistrate applies his judicial mind and is satisfied that the allegations, if proved, would constitute an offence and decide to initiate proceedings against the alleged offender, it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender.
In the matter of Fakhruddin Ahmad vs. State of Uttaranchal & Others, 2009(64) ACC 774 [2008(17) SCC 157], Hon'ble Apex Court has considered the definition of taking cognizance from para 11 to 15 and summarized the matter in paragraph 15, which is quoted below :
"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."
In the case of Harishchandra Prasad Mani and others vs. State of Jharkhand & others, (2017) 15 SCC 494, it was held in para 12 that it is well settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur v. State of Punjab AIR 1960 SC 866: (1960) 3 SCR 388: 1960 Cri LJ 1239, State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426, Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305: 1993 SCC (Cri) 36, Raghubir Saran (Dr.) v. State of Bihar AIR 1964 SC 1:(1964) 2 SCR 336:(1964) 1 CRi LJ 1, State of Karnataka v. M Devendrappa (2002) 3 SCC 89: 2002 SCC (Cri) 539 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122: 2005 SCC (Cri) 283.
This type of order has already been held unsustainable by this Court in the case of Ankit vs. State of U.P. & another, 2009(9) ADJ 778 relying on in a number of decisions of the Apex Court. The relevant portion of the said decision, is extracted below:
"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."(Emphasis supplied) It is noteworthy to mention here that summoning an accused in a criminal case is a serious matter and the order to summon any offender must reflect that concerned Magistrate has applied his judicial mind to the facts as well as law applicable thereto.
In view of the aforesaid discussions and the facts that the impugned order by which cognizance has been taken, does not reflect any application of mind, the same cannot be sustained.
This Criminal Misc. Application is allowed. The impugned order dated 17.3.2020 passed by the Additional Chief Judicial Magistrate III, Jaunpur is hereby set aside.
The Additional Chief Judicial Magistrate III, Jaunpur or the court before whom, in case, this matter is transferred is directed to decide case of the present applicants afresh with regard to summoning of the applicant in the aforementioned case and pass appropriate order in accordance with law keeping in view the observations made hereinabove as well as the guidelines issued by Hon'ble Supreme Court in the judgements referred to above.
Order Date :- 23.11.2020/nd