M/S V.K. Traders vs State Of U.P. & Another
2012 Latest Caselaw 5587 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 12.10.2012
 
Delivered on 9.11.2012
 
Case :- CRIMINAL REVISION No. - 679 of 2010
 
Petitioner :- M/S V.K. Traders
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Siddharth
 
Respondent Counsel :- Govt. Advocate
 
Connected with
 
Case :- CRIMINAL REVISION No. - 732 of 2010
 
Petitioner :- M/S Priya Drinks Thru' Prop. Smt. Kaushalya Devi
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Siddharth
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Virendra Vikram Singh,J. 

As both the two revisions mentioned above have been filed against the same order, they are being decided by the present common judgment.

By the impugned order, the learned ACJM-I, Shahjahanpur has taken cognizance of the offence and has issued summons against the present two revisionists and another to face trial.

The brief facts of the case are that on 25.5.2008 respondent-Manoj Kumar Tomar, Food Inspector of district Shahjahanpur seized bottles of Non Alcoholic Carbonated Water prepared by M/S Priya Drinks, revisionist, from the shop of Rafi Mohammad, co-accused. These bottles were duly sealed and were sent to the public analyst. By his report dated 5.7.2008, the sample was found to be adulterated. The other revisionist M/S V.K.Traders is the stockist and the wholesaler of the drinks in question.

After having obtained the sanction of the Chief Medical Officer, the complaint under different provisions of Food Adulteration Act 1954 was filed by the respondent no.2, before first Additional Chief Judicial Magistrate, Shahjahanpur.

The learned court below while passing the impugned order directed for registration of the case and summoned the accused while fixing date.

It is proper to mentioned it here that this order dated 10th November, 2009 has been passed by way of rubber stamp in the following manner:

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Heard Shri Siddharth, learned counsel for the revisionist and learned Additional Government Advocate.

It has been argued on behalf of the revisionist that the manner in which the cognizance has been taken, is against the provisions of law. There is no indication in the impugned order that the learned court below has taken note of and has considered the facts involved nor it has recorded any finding that a prima facie case worth proceeding trial against the accused persons is made out.

It has also been argued that the revisionists, not being the personal entity, the Court below has not taken proper care in summoning the accused by application of proper proposition of law.

On behalf of the respondents, the argument has been advanced in favour of the impugned order.

By the impugned order the learned court below has taken cognizance of the offence on the basis of the complaint filed by respondent no. 2 and thus, while deciding the present revision it is incumbent on the part of the Court to lay down as to what is the import of the word "cognizance" and when a cognizance is said to have been taken. Further as to what are the requirements for taking cognizance and whether such requirements have been followed in the present case.

The word "cognizance" has repeatedly been used in different sections of the Code of Criminal Procedure, hereinafter referred to as "Cr.P.C.". However, this word has nowhere been defined in Cr.P.C.

The word "cognizance" has been defined in different judgments of the Apex Court. In the case of S. K. Sinha, Chief Enforcement Officer Vs. Videocon International Limited and others (2008)2 SCC page 492. The word cognizance has been narrated as follows:

"The expression "cognizance" has not been defined in Cr.P.C.. But the word (cognizance) is of definite 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"

In the latest pronouncement of the Apex Court in the case of Bhushan Kumar and another Vs. State of NCT of Delhi and another 2012(5) SCC 424, the expression of cognizance has been described as follows:

"The expression "cognizance" in Sections 190 and 204 Cr.P.C. is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 Cr.P.C, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceedings and not Whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 Cr.P.C."

In view of the mandate of the Apex Court discussed above, it is evident that the cognizance is taken by the court whereby it holds that sufficient grounds exist for initiation of criminal proceedings against the accused proposed to be summoned for trial. Further that the cognizance is taken in respect of a case and not in respect of the accused-persons in a case. The fact that the cognizance is taken by the Court is equivalent to the statement that all the condition requisite for the initiation of proceedings are complete.

After the definition of the word cognizance now the point arises as to how a cognizance is taken by the Court.

In the case of S. K. Sinha, Chief Enforcement Officer(Supra) quoted above, the Hon'ble the Apex Court in para 20 has defined as to how a cognizance is taken with the following observation:

"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 fact and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken "Cognizance".

Now it has to be seen as to how the Magistrate has taken cognizance in the present case. On the basis of a complaint filed by the respondent no. 2, Food Inspector filed in the Court of the Magistrate, the cognizance is said to have been taken. Thus the cognizance was to be taken in view of the provisions of section 190 (1) Cr.P.C. and the order for summoning the accused was to be passed under the provisions of section 204 Cr.P.C.

It has been argued on behalf of the revisionists that the impugned order, which is a composite order of taking cognizance and issuance of process, no ground for issuing summons for taking cognizance has been mentioned. Since the order has been passed without assigning any reason for the same, hence it is liable to be quashed.

The cognizance on the basis of complaint has been taken by the Magistrate under the provisions of section 190 (1) Cr.P.C and the provisions of issuance of process to the accused to face trial are embodied in section 204 Cr.P.C. In none of the sections there is any mention that the Magistrate while passing the order for taking cognizance of the offence under section 190 (1) (a)Cr.P.C. or for issuance of process under section 204 Cr.P.C has to record reasons for the same.

The provisions of section 203 Cr.P.C. makes it clear that if the Magistrate on the basis of the complaint and inquiry under section 202 Cr.P.C comes to the conclusion that there is no sufficient ground for proceeding, then he will dismiss the complaint and shall record his reasons for doing so. Thus, it is evident that the Magistrate is supposed to record the reason only when he passes an order to dismiss the complaint and not when he passes order to summon the accused persons.

The Hon'ble Apex Court in the case of Kanti Bhadra Shah vs. State of West Bengal, 2000 (40) ACC page 441 has laid down as follows:

"The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order".

Again in the case of Deputy Chief Controller of Imports and Exports vs. Roshan Lal Agarwal and others 2003 (46) ACC page 786, the Hon'ble Apex Court has held as under:

"Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."

In the case of Bhushan Kumar and another (Supra), the Hon'ble the Apex Court has laid down the requirements for summoning the accused.

"Section 204 Cr.P.C does not mandate the Magistrate to explicitly state the reasons for issuance of summons. Section 204 Cr.P.C 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 Section 204 that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued. Therefore, the order passed by the Magistrate cannot be faulted with only on the ground that the summoning order was not a reasoned order."

The result of the above discussion is that the Magistrate at the time of passing an order for taking cognizance or issuance of process under section 204 Cr.P.C is not supposed to record reason by way of any detailed,or speaking order whether on the basis of the facts a prima facie case is made out against the accused worth calling for them to face trial.

It is true that the Magistrate while taking cognizance or issuing process to the accused to face trial is not supposed to record a detailed reason, but at the same time, it is also true that the order must be indicate that the Magistrate has taken the facts and the evidence of the case into consideration and has thereby passed such order.

In the case of Mohammad Sayeed vs. State of U.P and others 2011 (73) ACC page 750, the order for taking cognizance mentioned that the Magistrate has seen and gone through the records, and took cognizance, the order was held to be justified.

Now the principles of law, which have been laid down earlier to be applied in the present set of facts. In the present case, a perusal of the impugned order categorically goes to show that the order has been passed in a routine way and the facts of the case have nowhere been taken into consideration nor the Magistrate has given any indication in the impugned order that he has gone through the evidence or record at all.

The order in question as mentioned earlier is by way of rubber stamp in which the date for appearance of the accused has subsequently been filled up. It is mentioned in the order that the Challani report has been received from the Police Station concerned. The proceedings in this case have not been instituted on the basis of charge sheet filed by the concerned Police Station, but in the present case, the proceedings have been launched by way of complaint filed by the Food Inspector, presently respondent no. 2.

There is no mention in the order that the Magistrate has taken cognizance of the offence. Thus, the impugned order can never said to have been equivalent to the statement that the Magistrate has taken cognizance and after perusal of the documents and evidence the summons were issued to the accused to face trial.

Under such circumstances, the order in question is violative of the manner and procedure, in which the cognizance of an offence is taken. This order being illegal is bound to be set aside and the revision is liable to be allowed.

It is true that the impugned order taking cognizance and issuance of process has been held to be illegal, but this Court has not considered the merits of the case, hence the only course open to is to remand the case to the Magistrate concerned for a fresh consideration and to pass a fresh order for taking cognizance of offence and issuance of process against the accused persons.

It has also been argued on behalf of the revisionists that the Magistrate while issuing summons for facing trial to the accused persons has not taken into account the fact that the accused persons, presently the revisionist in the two cases, are not private persons, but are the companies and has also not considered the due provisions of law in issuing summons to them as per law. Since the matter is being remitted for fresh consideration by the court below,and the Court below by passing the impugned order has not passed any order in this context, this Court does not propose to issue any specific direction to the Magistrate concerned. However, the Magistrate while issuing process to the accused persons shall take into consideration all the relevant provisions before passing any order.

Before parting with the case, the Court shall like to record that section 18 of the General Rules (Civil), 1857 provides for the prohibition of the Rubber Stamp in judicial orders and the use of Rubber Stamp for passing any order has been forbidden by the circular letter of the High Court, Allahabad no. 6 of 2001 dated 7th February, 2001. By this circular letter it was impressed upon the Judicial Officers of the Subordinate Courts that for passing any judicial order, the Rubber Stamp shall not be used. It is unfortunate to observe that despite this circular letter of the year 2001, the Magistrate in the present case has passed the impugned judicial order with the use of rubber stamp and further by filling up the date in it.

It appears that all the Judicial Officers are not taking note of the circular letter, hence the Registrar General is directed to issue a direction to all the Judicial Officers through the District Judges concerned to ensure that any judicial order be not passed by way of using the Rubber Stamp.

The revision is hereby allowed and the impugned order dated 10th November, 2009 is hereby set aside.

The Magistrate concerned shall pass a fresh order for taking cognizance in the matter and shall thereafter, proceed with the trial of the case in accordance with law.

Let a copy of this judgment be also sent to the Registrar General for compliance.

Dated 9.11.2012.

Sumaira