Satish Chandra vs State Of U.P. And Another
2016 Latest Caselaw 3394 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 42
 

 
Case :- CRIMINAL REVISION No. - 1726 of 2016
 

 
Revisionist :- Satish Chandra
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Ajay Singh Sengar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Abhai Kumar,J.

Heard learned counsel for the revisionist as well as learned AGA for the State and perused the record.

This criminal revision has been filed against the order dated 31.3.2016 passed by Judicial Magistrate, Kalpi, District - Jalaun in Case No. 471 of 2016 (State Vs. Satish Chandra & others) whereby learned Magistrate took cognizance on the chargesheet filed by Police Station - Churkhi, District - Jalaun.

Brief facts of the case are as follows:

It is submitted by the learned counsel for the revisionist that learned Magistrate has not applied his mind before taking the cognizance and in the context, it is also submitted that on printed proforma, fillings are being made by the office of the learned magistrate and learned magistrate put his short signatures upon that.

Learned AGA argued that there is no set pattern for taking the cognizance on the police report and in this case learned magistrate has applied his mind as is clear from the order dated 31.3.2016 in which it has been written that the matter has been perused.

Learned counsel for the revisionist on the basis of the law propounded by the Apex Court in the case of Fakhruddin Ahmad Vs. State of Uttaranchal and another, 2009 (64) ACC 774, asserted that application of mind is not there in the impugned order, Hon'ble Apex Court in paragraph 15 of the said judgment observed as follows:

"15.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."

Learned counsel further based his contentions on the basis of law laid down by the another bench of this court in the case of Ankit Vs. State of U.P. and another, 2009 (9) ADJ Pg. 778 and in the case of Qavi Ahmad Vs. State of U.P. and another, Criminal Revision No. 3209 of 2010, decided on 14.10.2011, whereby it has been held that if application of mind by the magistrate is lacking in the order and there is printed proforma upon which fillings are made, then such cognizance is not sustainable.

In the case of Ankit (supra), the court observed as under:-

"At the time of passing any judicial order including the order taking cognizance on the charge-sheet, the court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the court below for passing fresh order on the charge-sheet after applying judicial mind."

The contention of the learned counsel is very well supported by the laws described above but certainly that cannot be on any blanket application of these laws rather each and every case is to be seen in its own perspective because Hon'ble Apex Court has consistently observed that there is no such principle for taking cognizance. Hon'bel Apex Court in the case of Anil Saran Vs. The State of Bihar and another, 1995 SCC (6) 142 has observed as under:-

"We find no force in the contention. Though the Code defines "cognizable offence" and "non-cognizable offence", the word `cognizance' has not been defined in the Code. But it is now settled law that the court takes cognisance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc, cognisance is said to to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon information of a person other than the police officer, depends upon further taken pursuant thereto and the attending circumstances of the particular case including the mode in which case is sought to be dealt with or the nature of the action taken by the Magistrate. Under sub-section (1) of section 190 of the code, any Magistrate may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."

The stand of the Hon'ble Apex Court is consistently same even in the year 1971 in the case of Darshan Singh Ram Kishan Vs. State of Maharashtra, 1971 AIR 2372, has held that there is no set pattern for taking the congnizance. Relevant portion of the said judgment reads as under:

"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."

It is apparently clear from the above observations that there cannot be any set pattern for taking cognizance by the magistrate and it does not involve any formal action and the action followed by that can very well ascertain as to whether magistrate has applied its mind or not.

The first contention of the learned counsel for the revisionist regarding the application of mind cannot be accepted, as from the impugned order dated 31.3.2016 it can very easily be said that the learned magistrate has perused the record after receiving the chargesheet. It is also observed by him that prima facie case is made out. These very words in very clear terms discloses the application of mind by the magistrate, therefore, it cannot be said that there was no application of mind by the magistrate concerned before taking cognizance.

So far as the second contention of the learned counsel regarding the filling of gaps in a printed proforma is concerned, also do not find any reason to believe, because the impugned order is typed order, except for dates which are being filled by pen. So far as entries are concerned, like 'Case Crime No.' 'Parties Name' 'Sections' etc., these are usually filled up by the office only and it is not necessarily to be filled up by the magistrate himself in his own handwriting. Order of taking cognizance is not like the order passed under Section 111 Cr.P.C. It is consistent view of this Court that it should not be on printed proforma by filling the gaps but the conditions therein are certainly different than that of taking cognizance upon police report in a proceeding under Section 111 Cr.P.C. Report of the police station is being submitted and magistrate has to take action after taking the stock of the report and in that case application of mind is necessary after considering all the facts and circumstances that are to be forwarded by the police station and a conclusion has to be drawn by the magistrate concerned. In the cases before a magistrate for taking cognizance on the police report under Section 173 Cr.P.C. such type of application of mind is not necessary. Police personnel after investigating the matter and coming to a conclusion that case is made out against the accused persons files a report and upon that magistrate while taking cognizance is to apply his mind regarding the prima facie case is made out unlike the clear cut observation that is to be taken in the proceeding under Section 111 Cr.P.C. If dates and other fillings are being made by the office then it cannot be said that there is no application of mind rather it is the language of the order that is to be seen and following action that is taken and in the present case as observed above, magistrate has applied his mind and after that has taken cognizance and issued summons.

In the attuning circumstances, I fail to find any weight in the submissions of learned counsel and in consequence, revision lacks merit and liable to be dismissed.

The criminal revision is hereby dismissed.

Dated: 6.6.2016

Ranjeet Sahu