Delhi District Court
Shashank Tamrakar vs The State on 21 April, 2023
IN THE COURT OF PRAVEEN KUMAR,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
Crl. Revision No.66/2023
CNR No.DLNE01-001060-2023
FIR No.115/2014
under Sections:419/420/34
PS: Sonia Vihar
In the matter of:
Shashank Tamrakar
S/o Sh. Mahender Kumar Barha
R/o H. No. F/F-6, Pitambra Estate,
Indramani Nagar, Gwalior,
Madhya Pradesh. .........Revisionist
Versus
The State,
Government of N.C.T. of Delhi . ...........Respondent
Date of registration of revision: 31.03.2023
Date when revision was received by this Court: 01.04.2023
Date of conclusion of arguments: 18.04.2023
Date of pronouncement of judgment: 21.04.2023
Memo of appearance:
Sh. R. P. Kaushik and Sh. Himanshu Kaushik, Ld. counsel for the
revisionist.
Sh. Maqsood Ahmed, Ld. Chief Public Prosecutor for the State-
respondent.
JUDGMENT:
1. This is a revision petition under Section 397 of the Code of Criminal Procedure (in short 'Cr.P.C') filed by the revisionist against the order dated 31.10.2022 passed by Sh. Aashish Gupta, Ld. ACMM, North-East, Karkardooma Courts, Delhi in case FIR PRAVEEN KUMAR No.115/2014, PS Sonia Vihar, under Sections 419/34 IPC titled Digitally signed by PRAVEEN KUMAR Date: 2023.04.21 15:23:45 +0530 Crl. Revision No.66/2023 Shashank Tamrakar Vs. State Page 1/8 as 'State Vs. Tarun Kumar & Anr' whereby the Trial Court took the cognizance of the offence(s) against the revisionist and summoned him as an accused.
2. Trial Court record has been requisitioned.
3. For the sake of convenience, the revisionist would be referred to as the 'accused' as per his nomenclature before the Trial Court.
BRIEF FACTS:
4. Briefly stated, the complainant-Krishan Kant Sharma was working as Finger Print Expert with IBIOS (P) Ltd. Company. On 23.03.2014, he was deputed at ABCDE Ground, PTS, Wazirabad, Delhi to check bio-metric finger prints of candidates appearing in examination for the post of Temporary Constable (Dog-Handler) in Delhi Police-2013. At around 9:00 AM, accused came at the counter where the complainant was deputed with an admission card bearing roll no.714419. However, the aforesaid admission card was issued in the name of co-accused Tarun Kumar. The finger prints of the accused-Shashank Tamrakar did not match with finger prints record. Hence, the complainant handed him over to police as he had come to appear in the aforesaid examination in place of co-accused Tarun Kumar. During interrogation, accused-Shashank Tamrakar disclosed that co-accused Tarun Kumar offered him an amount of Rs.30,000/- for appearing in the aforesaid examination in his place. An FIR under Sections 419/34 IPC was registered against both the aforesaid accused. After investigation, the charge-sheet was filed against the accused persons for commission of offences under Sections 419/420/34 IPC. PRAVEEN KUMAR ORDER OF THE TRIAL COURT:
Digitally signed by5. The Trial Court, vide impugned order dated 31.10.2022, PRAVEEN KUMAR Date: 2023.04.21 15:23:54 +0530 Crl. Revision No.66/2023 Shashank Tamrakar Vs. State Page 2/8 took cognizance of offences and issued summons to both accused through IO and DCP. The impugned order under challenge before this Court is reproduced herein-below:
"31.10.2022 Present: Ld. APP for the State.
SHO in person.
Report of SHO and DCP perused.
Charge-sheet perused.
On the basis of charge-sheet and documents annexed, I hereby take cognizance of the offences.
Issue summons to both accused through IO and DCP, returnable for
06.01.2023.
sd/-
(Aashish Gupta) ACMM/NE/KKD Courts 31.10.2022"
ARGUMENTS:
6. I have heard Sh. R. P. Kaushik and Sh. Himanshu Kaushik, Ld. counsel for the accused and Sh. Maqsood Ahmed, Ld. Chief P. P for the State.
7. It is contended by Ld. counsel for the accused that the Trial Court has failed to consider the fact that the charge-sheet was filed before it after the period of limitation was over. It is contended that after expiry of limitation period, the Trial Court ought to have not taken cognizance of offence(s) against the accused. It is contended that ingredients of Section 420 IPC are not attracted against the accused in the present case. It is further contended that the impugned order is not a speaking order and PRAVEEN same has not been passed in accordance with law. It is prayed KUMAR that the impugned order be set aside. In support of his Digitally signed by PRAVEEN KUMAR Date: 2023.04.21 contentions, Ld. counsel has relied upon judgments-State of 15:24:02 +0530 Crl. Revision No.66/2023 Shashank Tamrakar Vs. State Page 3/8 Punjab Vs. Sarwan Singh, AIR 1981 Supreme Court 1054; K. Hanumantha Rao Vs. K. Narasimha Rao, 1982 CRI. L. J. 734;
Srinivas Pal Vs. Union Territory of Arunachal Pradesh (Now State), AIR 1988 Supreme Court 1729; Sanjay Gupta Vs. State, 2003 (1) RCR (Criminal) 113; and State of H.P. Vs. Tara Dutt, (2000) 1 Supreme Court Cases 230.
8. On the other hand, Ld. Chief P. P for the State has contended that there is no infirmity in the impugned order. It is contended that the impugned order has been passed by the Trial Court after considering allegations leveled against the accused in the charge-sheet and material available on record. FINDINGS & DISCUSSION:
9. I have gone through the record. The present revision petition has been filed for setting aside the summoning order dated 31.10.2022. A perusal of the impugned order shows that the Trial Court took cognizance of the offence(s) against the accused-Shashank Tamrakar (revisionist herein) and co-accused Tarun Kumar and issued summons to them without recording any finding to this effect.
10. The main issue for consideration before this Court is whether the Trial Court may summon the accused without assigning any reason and take cognizance on the basis of police report filed under Section 173 Cr.P.C. It is relevant to mention here that a Court can take cognizance of an offence only when condition requisite for initiation of proceedings before it, as set out in Chapter XIV of the Code, are fulfilled. Section 190 of the Cr.P.C provides as under:-
"190. Cognizance of offences by Magistrates- PRAVEEN (1) Subject to the provisions of this Chapter, any KUMAR Magistrate of the first class, and any Magistrate of the Digitally signed by second class specially empowered in this behalf under PRAVEEN KUMAR Date: 2023.04.21 15:24:12 +0530 Crl. Revision No.66/2023 Shashank Tamrakar Vs. State Page 4/8 sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such 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 offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
11. Fair and proper investigation is the primary duty of the State. No investigating agency can take unduly long time in completing investigation. Under Article 21 of the Constitution of India, speedy trial is a fundamental right which in turn encompasses speedy investigation, inquiry, appeal, revision and retrial. Reference in this regard is invited to Judgments-Dilawar vs. State of Haryana, (2018) 16 SCC 521; Menka Gandhi vs. Union of India, AIR 1978 SC 597; Hussainara Khatoon (I) vs. State of Bihar, (1980) 1 SCC 81; Abdul Rehman Antulay vs. R.S. Nayak, (1992) 1 SCC 225; and P. Ramchandra Rao vs. State of Karnataka, (2002) 4 SCC 578.
12. Though not referred to or relied upon, in judgment- Basaruddin & others Vs. State of U.P., 2011 (1) JIC 335 (AII) (LB), it has been held as under:-
"From a perusal of the impugned order, it appears that the learned Magistrate on the complaint filed by the complainant has summoned the accused in a mechanical way filling the date in the typed proforma. Learned Magistrate while taking cognizance of the offence on complaint was expected to go through the allegations made in the complaint and to satisfy PRAVEEN himself as to which offences were prima facies, being KUMAR made out against the accused on basis of allegations Digitally signed by PRAVEEN KUMAR made in the complaint. It appears that the learned Date: 2023.04.21 15:24:20 +0530 Crl. Revision No.66/2023 Shashank Tamrakar Vs. State Page 5/8 Magistrate did not bother to go through the allegations made in the complaint and ascertain as to what offences were, prima facie, being made out against the accused on the basis of allegations made in the complaint. Apparently, the impugned order passed by the learned Magistrate suffers from non- application of mind while taking cognizance of the offence. The impugned order is not well reasoned order, therefore, the same is liable to be quashed and the petition deserves to be allowed and the matter may be remanded back to the learned Chief Judicial Magistrate, Lakhimpur Kheri with direction to him to go through the allegations made in the complaint and ascertain as to what offences against the accused were prima facie being made out against the accused on the basis of allegations made in the complaint and pass fresh order, thereafter, he will proceed according to law."
(Emphasis mine)
13. Though not referred to or relied upon, in judgment- Darshan Singh Ram Kishan v. State of Maharastra, (1971) 2 SCC 654, the Apex Court has held 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 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 if a person other than a police officer. Therefore, when a Magistrate takes Digitally signed by cognizance of an offence upon a police report, prima facie, PRAVEEN PRAVEEN KUMAR KUMAR Date:
2023.04.21 he does so of the offence or offences disclosed in such 15:24:28 +0530 Crl. Revision No.66/2023 Shashank Tamrakar Vs. State Page 6/8 report.
14. Though not referred to or relied upon, in judgment- Sunil Bharti Mittal v. Central Bureau of Investigation, AIR 2015 SC 923, the Apex Court has 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."
(Emphasis mine)
15. Thus, cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since, it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the material collected by the Investigating Officer results in sufficient grounds to proceed further in the matter against the accused thereby summoning him to appear before the criminal court to face trial. This discretion puts a responsibility on the Magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject. The orders of Magistrate must not suffer from non-application of judicial mind while taking cognizance of the offence. CONCLUSION:
16. In view of the above discussion, the present revision petition is hereby allowed. Order dated 31.10.2022 passed by the Ld. ACMM, North-East, Karkardooma Courts, Delhi is set aside. The Trial Court is directed to decide afresh the issue of taking PRAVEEN cognizance and summoning the revisionist-accused. Ld. MM is KUMAR further directed to pass a speaking order mentioning the offences, Digitally signed by PRAVEEN KUMAR Date: 2023.04.21 if any, regarding which cognizance is taken against the accused 15:24:35 +0530 Crl. Revision No.66/2023 Shashank Tamrakar Vs. State Page 7/8 on the basis of material on record and keeping in view the direction(s) contained in the judgment(s) referred herein-above within a period three months from today.
17. Nothing in this order shall tantamount to an expression of an opinion on merits of the case.
18. Trial Court record be sent back along with a copy of this judgment.
19. Revision file be consigned to the Record Room after due compliance. PRAVEEN Digitally KUMAR signed by PRAVEEN KUMAR Date: 2023.04.21 15:24:44 +0530 Announced in the open (Praveen Kumar) court today i.e on 21.04.2022 Principal District & Sessions Judge, North East, Karkardooma Courts, Delhi.
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