Allahabad High Court
Amit Kumar Dwivedi And Another vs State Of U.P. And Another on 5 October, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:191892 A.F.R. Court No. - 93 Case :- APPLICATION U/S 482 No. - 35443 of 2023 Applicant :- Amit Kumar Dwivedi And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashutosh Kumar Singh,Arvind Singh Patel,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Gajendra Pratap, learned Senior Counsel assisted by Sri Arvind Singh Patel, learned counsel for the applicants and Sri Ramesh Kumar, learned A.G.A. for the State.
2. The present application has been filed for quashing the impugned charge sheet No. 130 of 2013 dated 31.12.2023 and summoning order dated 4.8.2017 in Case No. 1203 of 2017 (State vs. Amit Kuamr Dwivedi and another), u/s 323, 504, 325 I.P.C. and entire proceeding arising out of Non Cognizable Report No. 117 of 2013, u/s 323, 504 I.P.C., P.S. Kaundhiyara, District Prayagraj, pending before A.C.J.M.-5, Allahabad.
3. Contention of counsel for the applicants is that the cognizance order dated 4.8.2023 is bad in the eyes of law as the same was passed on a printed proforma which clearly shows that there is non application of mind by the learned Magistrate.
4. From perusal of the cognizance order dated 4.8.2017, it appears that this order is nothing but signing on a printed proforma by the Judicial Magistrate, Court No.1, Allahabad.
5. The Hon'ble Apex Court in the judgement of Lalankumar Singh vs State of Maharashtra; 2022 SCC Online SC 1383 has observed in para 38 that "the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused".
6. Similarly, the Apex Court in the case of Sunil Bharti Mittal vs Central Bureau of Investigation; 2010(11) SCC 125 observed in para 53 which is as under:-
"53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immene 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. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
7. Co-ordinate Bench of this Court in the judgement of Satya Pal vs State of U.P. and another; 2023 (4) ADJ 345 (LB), held that signing on printed proforma has no cognizance at all as the same is without application of mind and quashed the cognizance order. The relevant paragraph no. 21 of the Judgement is quoted as under:
"21. In view of the above, the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated. The summoning of an accused in a criminal case is a serious matter and the order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto, whereas the impugned summoning order was passed in mechanical manner without application of judicial mind."
8. This Court had an occasion to deal with such issue in Application u/s 482 No. 26416 of 2021 (Smt. Akali Devi and others vs. State of U.P. and another) and decided on 26.9.2023, observing that practice of taking cognizance on printed proforma on the part of the Magistrate is absolutely erroneous because that does not show application of his mind on the material collected during investigation. Paragraph-8 of the aforesaid judgement dated 26.9.2023 reads as under:-
"8. In view of above legal position, this Court is of the view that merely signing and filling the date and case crime no. in printed proforma is absolutely non-application of mind because the cognizance order must reflect the prima facie opinion of the learned Magistrate."
9. In view of above legal position, this Court is of the view that merely signing and filling up the date and case crime number in printed proforma is absolutely non-application of mind because the cognizance order must reflect the prima facie opinion of the learned Magistrate on the material collected during investigation. Order of issuance of process is not an empty formality, it may affect the personal liberty of a person. Article 21 of Constitution of India guarantees personal liberty of a person and same cannot be deprived of, without due procedure of law. Apart from this, summoning of accused to appear before criminal court after taking cognizance is a serious matter, affecting the dignity, self-respect and image in society. Therefore, proper process by the criminal court must be followed at the time of taking cognizance and summoning the accused.
10. As in the present case, the impugned cognizance order is nothing but signing the printed proforma which cannot be said to be application of mind, therefore, considering the aforesaid legal position, the cognizance order dated 4.8.2017 passed by Judicial Magistrate, Court No.1, Allahabadj is quashed. Learned Judicial Magistrate, Court No.1, Allahabad is directed to pass fresh order regarding cognizance on the charge sheet in question within a period of one month from the date of presentation of a certified copy of this order, in accordance with law.
11. With the aforesaid direction, the application stands allowed.
12. This Court further directs to all the Magistrates/concerned courts, while taking cognizance on the charge sheet, the Magistrate/concerned court must mention the fact that which document he has perused and on perusal of those documents prima facie case for taking cognizance is made out on the basis of above material with short reasoning for making out prima facie case.
13. Registrar (Compliance) is directed to circulate the copy of this order to all District Judges for perusal and further circulation.
Order Date :- 5.10.2023 Vandana