Bishan Lal Gupta vs State on 30 August, 2022

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Delhi High Court - Orders

Bishan Lal Gupta vs State on 30 August, 2022

1. The present petition is filed under section 482 Cr. P.C. to impugn the order dated 21.02.2018 passed by the court of Shri Vijay Kumar Jha, ACMM (Shahdara) passed in case titled as State V Pramod Kumar Mittal & Others bearing C.C. no. 472/2018 arising out of FIR bearing no. 267/2013 registered at P.S. Anand Vihar under sections 288/304A/34 IPC and to set aside the order dated 20.08.2014 passed by the Court of Shri Sunil Beniwal the then ACMM, District (Shahdara) and the subsequent order dated 05.06.2017 and quashing of the charge-sheet dated 18.01.2018 filed in pursuance of FIR bearing no. 267/2013 qua the petitioner.

2. The perusal of FIR bearing no. 267/2013 reflects that it was registered on the basis of information given by the HC Mukesh posted at Dr. Hedgewar Hospital regarding the death of a person who was brought dead in Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.09.2022 18:33:55 the hospital. Thereafter, the charge sheet has been filed before the court of Shri Sunil Beniwal ACMM, District (Shahdara) Karkardooma Court. Vide order dated 20.08.2014, at the time of consideration of the charge-sheet , the Additional Public Prosecutor submitted that the charge-sheet has been suffering from many infirmities and defects and also pointed out that earlier the charge-sheet was placed before him for scrutiny in which he had pointed out certain objections as Bishan Lal Gupta i.e. the petitioner and Rajiv Sharma were kept in column no.12. The said court vide order dated 20.08.2014 has directed the Investigating Officer to conduct further investigation and also to remove the objections as raised by the Additional Public Prosecutor. Thereafter, two supplementary charge-sheets were filed.

3. The petitioner being aggrieved by the order dated 20.08.2014 (wrongly mentioned as 20.08.2017) and other orders dated 05.06.2017 and 20.07.2017 filed the Criminal Revision Petition no. 201/2017 titled as Bishen Lal Gupta v. State (Govt. of NCT of Delhi) which was dismissed vide order dated 17.10.2017 passed by the court of Shri A. S. Jayachandra, District & Sessions Judge, Shahdara, Karkardooma Courts and in the said order the revisional court also observed that the ACMM is advised to take note of the position of the law while the final report is filed by the investigation.

4. The court of Shri Vijay Kumar Jha, ACMM, Shahdara vide order dated 21.02.2018 on the basis charge-sheet (original charge-sheet and 02 supplementary charge-sheets) and documents attached along with the charge-sheets took the cognizance and ordered to issue summons to the main accused. The counsel for the petitioner stated that the impugned order dated 21.02.2018 has been passed in casual manner and without application Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.09.2022 18:33:55 of judicial mind. The trial court has not mentioned the offences for which the cognizance was taken and against whom the cognizance was taken. Accordingly, the impugned order is liable to be set aside.

5. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) reads as under:-

Cognizance of offences by Magistrates.-1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under 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.

6. Cognizance implies application of judicial mind by the Magistrate to the facts as stated in a complaint or a police report or upon information received from any person that an offence has been committed. It is the stage when a Magistrate applies his mind to the suspected commission of an offence. The cognizance of an offence is stated to be taken once the Magistrate applies his mind to the offence alleged and decides to initiate proceeding against the proposed accused. The Court before taking cognizance needs to be satisfied about existence of prima facie case on basis of material collected after conclusion of investigation. The magistrate has to apply his mind to the facts stated in the police report or complaint before taking cognizance for coming to the conclusion that there is sufficient material to proceed with the case. Taking of cognizance is a judicial function and judicial orders cannot be passed in a mechanical or cryptic manner. It is not only against the settled judicial norms but also reflects lack of Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.09.2022 18:33:55 application of judicial mind to the facts of the case. It is equally important to note that at time of taking cognizance a Magistrate is not required to consider the defence of the proposed accused or to evaluate the merits of the material collected during investigation. It is not necessary to pass a detail order giving detailed reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind.

7. In R.R. Chari V State of Uttar Pradesh, 951CriLJ 775 the question before the Supreme Court was as to when cognizance of the offence could be said to have been taken by the Magistrate under Section 190 of the Code. It was observed as under:-

It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under Section 167(b) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate.

Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.09.2022 18:33:55

8. The Supreme Court in Fakhruddin Ahmad V State of Uttaranchal, (2008) 17 SCC 157 also held as under:-

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.

9. The Supreme Court also observed in S.K. Sinha, Chief Enforcement Officer V Videocon International Ltd., (2008) 2 SCC 492 held as under:-

The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a Court or a Judge, it connotes to take notice of 'judicially'. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.09.2022 18:33:55 universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

10. The impugned order dated 21.02.2018 is cryptic, non-speaking and is passed without application of judicial mind. The impugned order has passed in casual and cursory manner and even the offences regarding which the cognizance was taken are not mentioned. Accordingly the impugned order dated 21.02.2018 is set aside. The Trial Court is directed to re-consider the issue of taking the cognizance afresh and to pass the speaking order on the basis of charge sheet.

11. The trial court is directed to pass the order taking the cognizance afresh by passing a speaking order on the basis of material directed in the investigation and culminated into the filing of charge-sheet including the supplementary charge-sheets.

12. Copy of this order to be sent to the concerned Trial Court for information and compliance.

13. The petition along with pending applications, if any, stands disposed of.

SUDHIR KUMAR JAIN, J AUGUST 30, 2022/sk/m Signature Not Verified Digitally Signed By:JITENDRA Signing Date:02.09.2022 18:33:55

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Delhi High Court - Orders