Aquil Ahmad And Ors. vs The State Of U.P Thru Principal ...
2015 Latest Caselaw 2191 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 25
 

 
Case :- U/S 482/378/407 No. - 4337 of 2015
 

 
Applicant :- Aquil Ahmad And Ors.
 
Opposite Party :- The State Of U.P Thru Principal Sec., Home Lucknow & Anr.
 
Counsel for Applicant :- R.B.S. Rathaur
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Aditya Nath Mittal,J.

Heard learned counsel for the petitioners, learned AGA and perused the record.

This petition under section 482 Cr.P.C. has been filed with the prayer to quash the entire proceedings of the Criminal Misc. Case No.1768 of 2015 (State vs. Aquil Ahmad and others) pending in the court of Chief Judicial Magistrate, Barabanki [arising out of Case Crime No.845 of 2013 under sections 147, 323, 504, 506 (452 IPC added during investigation), P.S. Kotwali City, District Barabanki including the order dated 28.05.2015 passed by the Chief Judicial Magistrate, Barabanki in Criminal Misc. Case No.1768 of 2015 (State vs. Aquil Ahmad and others).

Learned counsel for the petitioners has submitted that the aforesaid summoning order dated 28.05.2015 has been passed without application of mind. Therefore, the said order cannot be justified. It has also been submitted that the learned magistrate has not applied his mind because the charge-sheet was filed for the offence punishable under section 506 IPC also but no cognizance has been taken for the offence punishable under section 506 IPC. It has also been submitted that on one hand, the learned magistrate has stated that the accused persons have not been bailed out but on the other hand, the notices to the sureties have also been issued, which goes to show that the learned magistrate has not applied its mind. It has also been submitted that the said order is a rubber stamped order and the rubber stamped order cannot be passed by any judicial officer. Therefore, all the proceedings of Criminal Misc. Case No.1768 of 2015 (State vs. Aquil Ahmad and others) pending in the court of Chief Judicial Magistrate, Barabanki regarding the Case Crime No.845 of 2013 should be quashed.

Learned counsel for the petitioner has relied upon Raj Kumar Lal Srivastava vs. State of U.P. and another; 2007 (1) ALJ 755 in which Hon'ble the Single Judge of this Court has held as under:

"Learned Counsel for the Petitioner confines his argument within a very narrow compass and draws attention of this Court to the fact that the learned Magistrate has simply signed the summoning order which in fact is the reproduction of a rubber stamp. In other words the entire language of the order consists of a rubber stamp. He also puts forth that even the perforated line for writing a particular date has been left blank which shows that there was total non-application of mind while passing the summoning order at the time of taking cognizance on the charge-sheet. Since the learned Counsel for the Petitioner has confined his arguments only on the aforesaid point I am not adverting to other points mentioned in the application under Section 482 Cr.P.C.

The argument advanced on behalf of the Petitioner has substance. The use of rubber stamp for passing the judicial order is not proper and it evinces non-application of mind while passing the summoning order. This is further substantiated by the fact that even the date has not been mentioned to fill in the blank which has been left in the rubber stamp for mentioning the date for appearance."

Learned counsel for the petitioners has further relied upon Abdul Rasheed and others vs. State of U.P. and another; 2010 (71) ACC 389, in which Hon'ble the Single Judge of this Court has held as under:

"Whenever any police report or complaint is filed before the Magistrate, he has to apply his mind to the facts stated in the report or complaint before taking cognizance. If after applying his mind to the facts of the case, the Magistrate comes to the conclusion that there is sufficient material to proceed with the matter, he may take cognizance. In the present case, the summoning order has been passed by affixing a ready made seal of the summoning order on a plain paper and the learned Chief Judicial Magistrate had merely entered the next date fixed in the case in the blank portion of the ready made order. Apparently the learned Magistrate had not applied his mind to the facts of the case before passing the order dated 10.1.2006, therefore, the impugned order cannot be upheld."

On the other hand, learned AGA has submitted that the impugned order dated 28.05.2015 is not a rubber stamped order and the court is not required to pass a detailed order at the time of taking cognizance upon the police report.

The question that what indicates the satisfaction of the magistrate at the time of taking cognizance has been considered by Hon'ble the Apex Court in various judgments, some of which are mentioned as below :

In Darshan Singh Ram Kishan v. State of Maharashtra (1971) 2 SCC 654, it was 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. To quote:

"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 Emperor v. Sourindra Mohan (1910) I.L.R. Vol. XXXVII, Cal. 412, a Division Bench of the Calcutta High Court has taken the same view... "taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence".

In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors.; (1976) 3 SCC 736, Hon'ble the Apex Court took the view that in the process of taking cognizance and issue of process to the accused, Magistrate has to form an opinion that a prima facie case is made out against the accused. At that stage, the Magistrate is also competent to consider whether there are inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant. To quote:

"....It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused...."

In Kishun Singh and Ors. v. State of Bihar; (1993) 2 SCC 16, Hon'ble the Apex Court reiterated the position that where, on application of mind, the allegations in the complaint, according to the Magistrate, if proved, would constitute an offence, cognizance is to be is taken of the offence so as to proceed further against the accused. To quote:

"....Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding Under Sections 200/204 of the Code...."

In State of W.B. and Anr. v. Mohd. Khalid and Ors.; (1995) 1 SCC 684, it has been held by that while exercising the power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. At paragraph-43, it has been held as follows:

"....Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It 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."

In Kanti Bhadra Shah and Anr. v. State of W.B.; (2000) 1 SCC 722 the Honble Apex Court has taken the view that it is quite unnecessary to write detailed orders at the stage of issuing process.

In U.P. Pollution Control Board v. Mohan Meakins Limited and Ors.;(2000) 3 SCC 745, the position was further clarified that it was not necessary to pass a speaking order at the stage of taking cognizance.

In Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors.; (2003) 4 SCC 139, the Honble Apex Court considered the situation where the impugned order passed by the Magistrate read as follows: "Cognizance taken. Register the case. Issue summons to the accused". It was held that "at the stage of issuing the process to the accused, Magistrate is not required to record reasons". Kanti Bhadra Shah (supra) and U.P. Pollution Control Board (supra) were also referred to in the said decision.

In Jagdish Ram v. State of Rajasthan and Anr.; (2004) 4 SCC 432, the law was restated holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction. To quote:

"...The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding 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 inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."

In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. ; (2008) 2 SCC 492, the Honble Apex Court held that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind. To quote:

"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 universal application can be laid down as to when a Magistrate can be said to have taken cognizance."

In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr.; (2009) 2 SCC 147, at paragraph-23, the position has been discussed as follows:

"It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."

In Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr.; (2012) 5 SCC 424, the requirement of application of mind in the process of taking cognizance was reiterated. It was further held that summons is issued to notify an individual of his legal obligation to appear before the Magistrate as a response to the alleged violation of law. It was further held that in the process thus issued, the Magistrate need not explicitly state the reasons. Paragraphs-11 to 13 contain the relevant discussion, which read as follows:

"In Chief Enforcement Officer v. Videocon International Ltd.; (2008) 2 SCC 492 (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "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." It 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 of the Code, 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 proceeding 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 of the Code.

A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of court.

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 prerequisite for deciding the validity of the summons issued."

Again this question has been considered by Hon'ble the Apex Court in the case of Mehmood Ul Rehman and others vs. Khazir Mohammad Tunda and others; AIR 2015 SC 2195 in which the process for taking cognizance under section 190 Cr.P.C. has been considered and it has been held that under section 190(1)(b) of Code of Criminal Procedure, the Magistrate has the advantage of a police report but the under section 190 (1) (a) of the Cr.P.C., he has only a complaint before him. It has also been held that while taking cognizance under section 190 (1) (a) of the Code of Criminal Procedure, the Code of Criminal Procedure requires speaking order to be passed under section 203 of the Code of Criminal Procedure and the Magistrate is not to act as post office in taking cognizance of each and every complaint before him and issue process as a matter of course.

In the present case, the charge-sheet has been filed, therefore, this case falls within the ambit of Section 190 (1) (b) of the Code of Criminal Procedure.

From the aforesaid judgements of Hon'ble the Apex Court, it is clear that a detailed orders are not required to be passed at the stage of issuing process and even it was not necessary to pass a speaking order at the stage of taking cognizance. The only requirement is that he has to satisfy that there is sufficient ground for proceeding against the accused persons.

It has also to be noted that in the present case, the order dated 28.05.2015, which is on separate sheet as well as it is on the face of the charge-sheet is not a rubber stamped order. On the charge-sheet, it is handwritten while on the separate sheet, upon which the bailable warrant of Rs.10,000/- has been issued. It is a computer typed sheet, although, some blanks have been filled by hand. Thus, the law relied upon by the learned counsel for the petitioners in Raj Kumar Lal Srivastava (supra) is not applicable to the present case because in the present case, the magistrate has not simply signed the summoning order nor it is the reproduction of a rubber stamp.

As far as the law relied upon by learned counsel for the petitioners in the case of Abdul Rasheed (supra) is concerned, it is also not applicable in the present case because in that case, the summoning order was passed by affixing the ready-made seal of the summoning order on a plane paper and the Chief Judicial Magistrate concerned had merely entered the next date fixed in the case in the blank portion of the ready-made order, but in the present case, no such ready-made seal or the summoning order has been affixed.

A perusal of the copy of the charge-sheet, which has been filed as Annexure 11, goes to show that the language "voyksfdr izlaKku ysus dk vk/kkj i;kZIr gSA izlaKku fy;k tkrk gSA ntZ jftLVj gks & g0 lh0ts0,e0 28.05.2015" has been written in handwriting and it is not a rubber stamped. The subsequent order of the same date i.e. 28.05.2015 is on a separate sheet, which has been filed as Annexure 1, which is also not a rubber stamped order and it is a computer typed proforma. The main order is on the charge-sheet itself and handwritten, but subsequent proceedings have been drawn on a separate order sheet. Therefore, the main order has to be seen.

It is true that the charge-sheet has been filed for the offence punishable under sections 147, 323, 504, 506 and 452 IPC but the cognizance has been taken only for the offence punishable under sections 147, 323, 504 and 452 IPC, which in itself is sufficient to show that the learned Magistrate has applied his mind and he has not summoned the accused for the offence punishable under section 506 IPC. There may not be sufficient evidence available for taking cognizance under section 506 IPC.

Learned counsel for the petitioner has also raised the technical objection that only section 190 (b) has been mentioned while it should be section 190 (1)(b). Merely, the omission of (1) cannot be said that cognizance order is illegal or the mind has not been applied. It appears to be a typographical mistake which do not vitiate the order.

As far as the contention that - in the order it has been mentioned that accused have not been enlarged on bail, still the notices to the sureties have been issued is concerned - it is not necessary for the police to arrest the accused in view of the provisions of Section 41 (amended) where the offences are punishable with an imprisonment less than seven years. There are directions of this Court in this regard that where the offences are punishable below seven years of imprisonment, the police shall not arrest the accused persons unless it is required.

In these circumstances, the police takes bail bonds at the police station and releases the accused persons from the police station. Because in the present case, the said offences are punishable with an imprisonment of less than seven years. Therefore, this possibility cannot be ruled out that the accused persons might have been released on bail by the police station concerned. Therefore, issuance of notice to the sureties, also do not make the said order illegal.

As discussed above, a detailed and speaking order is not required to be passed at the time of taking cognizance under section 190 (1) (b) of the Code of Criminal Procedure although it is required to pass a detailed order and speaking order for taking cognizance under section 190(1) (a) of the Code.

As far as use of rubber stamped orders are concerned, this court has already issued circular letters in this regard and the said circular letters are being followed by the judicial officers of the State.

In the present case, there is no such rubber stamped order. Therefore, I do not find any substance in the submissions of the learned counsel for the petitioner.

Photostate copy of the charge-sheet as well as the summoning order has been filed as Annexure 1 and 11, which has been mentioned in paragraph 34 of the affidavit that a seal has been affixed. In the present case, no such seal has been affixed. Therefore, I do not find any substance in the submission of the learned counsel for the petitioner.

In these days of computerization, the computer typed orders cannot be said to be bad, nor the inference can be drawn that the mind has not been applied while passing such computer typed orders. However, all the courts of State of U.P. are advised to refrain from passing fill-in-the gap orders i.e. either the whole order should be typed by the type machine or the computer or the whole order should be handwritten but in no case, the rubber stamp can be used even for the routine orders.

As far as the quashing of the entire criminal proceedings are concerned, I do not find any other grounds to quash the proceeding of the criminal case no. 1768 of 2015.

With the aforesaid discussion and observations, the petition under section 482 Cr.P.C. is liable to be dismissed and it is hereby dismissed. No costs.

Order Date :- 8.9.2015

VNP/-