Shakuntala Devi vs State Of U.P. And 4 Others
2018 Latest Caselaw 1697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 
Case :- APPLICATION U/S 482 No. - 11232 of 2018
 
Applicant :- Shakuntala Devi
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Applicant :- Anoop Trivedi
 
Counsel for Opposite Party :- G.A.,Anshul Kumar Singhal
 
with
 
Case :- APPLICATION U/S 482 No. - 24467 of 2018
 
Applicant :- Sheelu @ Sheelendra Kumar
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Anoop Trivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saumitra Dayal Singh,J.

Heard Shri Anoop Trivedi, learned counsel for the applicant, Shri Anshul Kumar Singhal, learned counsel for the opposite party and Shri Ratnesh Nandan Singh, learned AGA for the State.

The application under Section 482 Cr. P. C. No. 11232 of 2018 has been filed by the informant for the following relief:-

"It, is therefore, most respectfully prayed that this Hon'ble Court may very kindly be pleased to allow this application and quash the charge sheet no. 394A in the case crime no. 1500 of 2014 and as well as other consequential proceedings. It is further prayed that this Hon'ble Court may further be pleased to direct the court below to sent the matter for further investigation of the Case Crime No. 1500 of 2014 and pending under Section 147, 148, 149, 302, 34 IPC Relating to Police Station Quarsi, District Aligarh.

The application under Section 482 Cr. P. C. No. 24467 of 2018 has been filed by the accused who have been charged by the police. They have sought the following relief:

"It, is therefore, most respectfully prayed that this Hon'ble Court may very kindly be pleased to allow set aside the order dated 20.06.2018 passed by the Chief Judicial Magistrate, Aligarh in Case No. 391 of 2018 as well as all other consequential proceedings of Case No. 391 of 2018......."

Though learned counsel for the applicant had earlier made various submissions, however, he has confined his submissions today to the effect that the learned Magistrate has taken cognizance and summoned the applicants without their existing any satisfaction as to the commission of the offence by the charged accused. It is further stated that if the learned Magistrate had actually perused the entire material that exists in the original police report and the supplementary police report, the only course that may have remained open to the learned Magistrate would have been to get conducted a further and proper investigation.

Briefly, Dr. Narendra Choudhary was done to death on 25.9.2014. Till now, there is no eye-witness. First an F.I.R. had been lodged by Shakuntala Devi-the mother of the deceased. In the original investigation, amongst others, the police appears to have examined the recording of the closed-circuit TV which disclosed that the deceased was last seen with the charged accused. It further emerged from the statements recorded by the police during investigation that the accused had accompanied the deceased to a public function where after the deceased; thereafter they consumed liquor and had dinner and; later, it also came on record that the deceased was brought to the hospital by the accused.

Upon such and other investigation conducted by the police, a charge-sheet was submitted on 07.03.2017 against the accused Sonu, Rahul, Sheelu and Sirmister. By that charge-sheet, besides the applicant/informant, seven formal witnesses, four police officers witness (with respect to the F.I.R. and the postmortem), the doctor who conducted the postmortem and ten Station House Officers and Investigating Officers, were named witness.

Instead of taking cognizance, the learned Magistrate passed a detailed order dated 03.04.2017 containing reasons not to accept that charge-sheet, as filed. Certain specific observations were made in that order to take notice of contradictions in the statements recorded under Section 161 Cr.P.C. Then, prima facie, it was observed that the investigation had not been properly conducted. A hope was also expressed that if a proper investigation were conducted, it may be possible to collect essential evidence. Consequently, further investigation was directed.

It appears further investigation was carried out wherein, amongst others, two other witness - Smt. Seema and Sri Ravi Kumar were also examined. Their statements, under Section 161 Cr.P.C. had been recorded. They also appear to have stated, that they had also last seen the deceased with the accused before the murder.

Upon such documents pertaining to the further investigation being submitted, on 05.02.2018, the learned Magistrate took cognizance on the original charge-sheet dated 07.03.2017. An endorsement had been made to the effect "Sabhi Prapatron Ka Avlokan Kiya. Aadhar Paryapt Hai. Sangyan Liya Gaya. Darj Register Ho."  Consequently, the applicants have been summoned. A separate order also appears to have been passed by the learned Magistrate, of the same date, wherein it has been observed - the entire documents/case file were examined. Other than that there is no other or further observation in the order dated 05.02.2018 as may indicate any application of mind by the learned Magistrate for the purpose of forming his satisfaction that the police report discloses commission of a cognizable offence by the accused.

In such circumstances learned counsel for the applicant submits that the learned Magistrate has erred in taking cognizance on the self-same/similar material that had been rejected by him on 03.04.2017, without due application of mind.

Then, it has been further submitted that in the meanwhile, the applicant/mother of the deceased had also lodged a criminal complaint wherein she had made accusations against the wife of the deceased of her involvement in the murder of the deceased. Certain statements are also claimed to have been recorded in the complaint case proceedings. With respect to the F.I.R. that had been lodged earlier by the applicant, it is stated that evidence had come on record to the effect that the informant was so mentally disturbed at that time that she had given her blank signed papers to the wife of the deceased, to lodge the F.I.R. It is further stated that even in the further investigation conducted by the police, copies of such statements had been made part of the case diary and such statements were also recorded in that investigation. According to the learned counsel for the applicant, all such material (accompanying the supplementary report) had not been considered by the learned Magistrate. The cognizance order has been passed on a cursory and inadequate/incomplete perusal and appraisal of the police report. Reliance has been placed on the decision of the Supreme Court in the case of Vinay Tyagi Vs. Irshad Ali alias Deepak and others reported in (2013) 5 SCC 762. For ready reference, the contents of paragraph 42 and 51 of that judgement are quoted below.

"42. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto which the court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the court shall discharge an accused in compliance with the provisions of Section 227 of the Code.

51. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct 'further investigation' on presentation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct 'further investigation' to clear its doubt and to order the investigating agency to further substantiate its charge sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct 'further investigation' or 'reinvestigation' as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, re-investigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may refer to the observations made by this court in the case of Sivanmoorthy and Others Vs. State  represented by Inspector of Police [(2010) 12 SCC 29]."

(emphasis supplied)

Learned counsel for the applicant has also relied on a decision of the Supreme Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in (2015) 4 SCC 609 wherein it has been held as below:

"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."

(emphasis supplied)

Further reliance has been placed on a decision of the Supreme Court in the case of Fakhruddin Ahmad Vs. State of Uttaranchal, reported in (2008) 17 Supreme Court Cases 157, wherein it has been held as below:

"11. The next incidental question is as to what is meant by expression `taking cognizance of an offence' by a Magistrate within the contemplation of Section 190 of the Code?

12. The expression `cognizance' is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit Vs. State of West Bengal, [1963] Supp. 1 S.C.R. 953, the word `cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means--become aware  of and when used with reference to a Court or Judge, to take notice of judicially. Approving the observations of the Calcutta High Court in Emperor Vs. Sourindra Mohan Chuckerbutty, (1910) I.L.R. 37 Calcutta 412, the Court said that `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.'

13. Recently, this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors. (2008) 2 SCC 492, speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase `taking cognizance' under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee, AIR (37) 1950 Calcutta 437, which were approved by this Court in R. R. Chari Vs. State of U.P, AIR (38) 1951 SC 207. The observations are:

"7. ... What is `taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)a CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."

14. From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by `taking cognizance'. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.

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."

(emphasis supplied)

Further arguments have been advanced to seek directions from this Court to conduct further investigation. In that regard, reliance has been placed on various other passages of the judgment of the Supreme Court Vinay Tyagi Vs. Irshad Ali alias Deepak and others reported in (2013) 5 SCC 762. Those are not being adverted to here, in view of the order that is proposed to be passed whereby such issues are proposed to be left open, at this stage, to be examined by the learned Magistrate, in his own unfettered discretion.

Shri Anshul Rastogi, learned counsel appearing on behalf of the wife of the deceased has also been permitted to make submissions, though, she (Dr. Natasha) is not a party to the present application. Relying on two decisions of the Supreme Court in the case of Nupur Talwar Vs. Central Bureau of Investigation, Delhi and Another reported in (2012) 2 SCC 188 and Amanullah and Another Vs. State of Bihar and Others reported in (2016) 6 SCC 699, it has been urged that at this stage the learned Magistrate was only required to form a prima facie view whether ingredients of offence are made out and that no in-depth analysis was required to be made by the learned Magistrate as to the possible success rate of the prosecution case. Specifically, reliance has been placed on paragraph no. 17 of the judgment in the case of Nupur Talwar (supra) that is quoted below:

"17. The taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record."

(emphasis supplied)

Also, reliance has been placed on paragraph no. 25 of in the case of Amanullah and Another Vs. State of Bihar and Others (supra). It reads :

"Answer to Point No.2 A careful reading of the material placed on record reveals that the learned CJM took cognizance of the offences alleged against the accused- persons after a perusal of case diary, charge sheet and other material placed before the court. The cognizance was taken, as a prima facie case was made out against the accused-persons. It is well settled that at the stage of taking cognizance, the court should not get into the merits of the case made out by the police, in the charge sheet filed by them, with a view to calculate the success rate of prosecution in that particular case. At this stage, the court's duty is limited to the extent of finding out whether from the material placed before it, offence alleged therein against the accused is made out or not with a view to proceed further with the case.

(emphasis supplied)

Further reliance has been placed on the another decision of the Supreme Court in the case of Bhushan Kumar and Another Versus State (NCT of Delhi) and Another, (2012) 5 SCC 424, to submit that the "cognizance" under Sections 190 and 204 Cr.P.C. is different from initiation of trial proceedings and that it is the condition precedent to initiate proceedings by the Magistrate. Cognizance has to be taken of the case and not of the person. At this stage, the learned Magistrate is only required to make a judicious application of mind to determine whether sufficient ground for proceeding further exists and not whether sufficient ground for conviction exists. No evaluation of adequacy of evidence is to be done at that stage. On the strength of that judgment, it has been emphasized that for the purpose of issue of summons, no reasons are required to be given by the learned Magistrate. Such exercise, it is submitted, may be done at subsequent stages but not at the stage of taking cognizance.

Last reliance has been placed on the decision of a learned single judge of this Court in the case of Atul Kumar Jain and others Versus State of U.P. Thru. Secy. And Another, being Application u/s 482 No. 14501 of 2016, decided on 11.5.2016.

Sri Ratnesh Nandan Singh learned AGA has also submitted that possible views on factual aspects cannot form the basis for rejecting a charge sheet at this stage. Though the learned Magistrate had earlier not approved the charge sheet and directed the further investigation, however, the observations in the earlier order dated 03.04.2017 were only tentative and not of a binding nature. At that stage, the learned Magistrate may not have felt satisfied and therefore, directed for further investigation. However, upon the conduct of the further investigation and upon submission of further documents, it was open to the learned Magistrate to take cognizance and issue summons against the persons charged by the Investigating Officer and the learned Magistrate was not bound by his earlier order and could have taken cognizance on the material accompanying the original police report. Therefore, he would submit that the subsequent order dated 05.02.2018 taking cognizance does not suffer from any infirmity, inasmuch as learned Magistrate was not required to give any detailed reasoning for taking cognizance.

Having considered the arguments so advanced by learned counsel for the parties, in the first place, the order taking cognizance is a judicial order. However, it is settled law that a cognizance order is not required to be a reasoned or speaking order. Also, it is not required to be passed upon any elaborate consideration of the material brought before the Magistrate as it only records the prima facie satisfaction of the Magistrate as to occurrence of an offence, upon a perusal of the material accompanying the police report.

At the same time, such an order cannot be cryptic or passed in a mechanical exercise of power. Undisputedly, the cognizance order does not arise on its own. Its basis or foundation lies in the police report and the material that is brought before the learned Magistrate, along with that report. However, mere existence of such material is not enough or complete to take cognizance. The process that such report and material must undergo before cognizance is taken must be of judicious application of mind. Being a judicial order recording commission of an offence, necessarily, it must spring from or arise as a natural consequence of judicious application of mind to the police report and the accompanying material.

It also cannot be denied that a cognizance order has far-reaching consequences. The cognizance order is an important step to initiate a criminal trial. Such a judicial order may not be made casually or unmindful of the consequences it would have on the person being summoned or the charge/s likely to be framed or the evidence that is likely to arise.

Thus, the learned Magistrate is not a post office in receipt of the police report. He is not required to put his seal or stamp to such report to acknowledge completion of the police investigation and initiation of the proceeding for a trial, by way of a logical end of the police investigation. His opinion is not to be governed by the conclusion of the Investigating Officer.

Being a power to be exercised judiciously, the learned Magistrate has to apply his mind, independent of the conclusion drawn by the investigating officer and then reach own satisfaction as to the commission of a cognizable offence and to summon such person/s (under section 204 Cr.P.C.), who according to him (and not necessarily the investigating agency) appear to have committed such offence. For such satisfaction to be independent and judicially sound it has to arise on an independent and complete perusal of and application of mind to the material contained in the police report.

Though the cognizance order is neither required to satisfy the test of a reasoned order nor it is required to be a detailed order nor there exists a format for such an order, however, at the same time, such order may not always be sustained upon a mere statement of satisfaction reached. Depending on the peculiar facts of each case, nature of offence alleged, facts pertaining to the police investigation and other factors that in turn may be relevant, the Magistrate may have to apply his judicious mind to the same and pass an appropriate order.

For such order to be valid it may not only record the fact that the Magistrate has felt satisfied but, depending on the facts of each case, also show that such opinion had been formed upon due application of a judicial mind to the relevant aspects of the given case. Such fact may get reflected from a plain reading of the cognizance order and/or the order sheet and nothing more. It may be brief as to be confined to a few sentences, but at times it may have to be longer.

The above application of mind also appears to be necessary since at the stage of taking cognizance, the learned Magistrate is not only required to peruse the police report and the material contained therein to be satisfied either to take cognizance or to reject the police report, but he is also to apply his mind and form an opinion whether the police investigation conducted in the case before him has been fair and proper or a further investigation or inquiry is required in the facts of a particular case.

When the legislature requires the learned Magistrate, to at this stage itself, examine this issue/aspect and form his opinion, clearly the application of a judicious mind to the material and documents brought before him would entail a most serious approach by the learned Magistrate than to merely record that the procedural formalities have been completed. At this stage the learned Magistrate has not only to ensure whether an FIR discloses cognizable offence or whether any investigation was conducted wherein some material may have been collected and statements have been recorded but also whether in the totality of the facts and circumstances of the case brought before him, it is fit or appropriate to proceed further or some further investigation on any particular or general aspect of the case, appears necessary.

Thus, at this stage, the learned Magistrate has to act as the first sieve placed by the legislature through which the police report must pass successfully. The Magistrate holds the sieve by applying his judicious mind to the police report and the material brought with him. The legislature further vests in him the discretion to accept or reject the police report/conclusion and/or to even ask for a further investigation.

In the present case, upon submission of the police report, the learned Magistrate had passed a detailed order making observations disapproving certain specific aspect/s of the police investigation. In such circumstances, upon further investigation having been carried out and the further material having been placed before the learned Magistrate, it became incumbent upon the learned Magistrate to pass an appropriate order or such an order, as may, of its plain reading indicate application of a judicious mind to the entire material before the learned Magistrate, before summoning the same accused who had been named by the police in the original report.

Once the learned Magistrate had himself disapproved the conclusion drawn by the police in the original investigation for specific reasons contained in that order, it would have been in the fitness of things if the learned Magistrate had passed an order, in such a manner as may indicate that he had, upon receipt of the supplementary police report applied his mind to the material before him, to make out a case for cognizance taken and for the named accused to be summoned. It may have been open to the learned Magistrate to examine and form his independent opinion, amongst others on the material that he had examined earlier. In doing so, the learned was neither restricted to examine the material placed before him in the supplementary police report, nor was he in any manner bound by any observation made by him in his earlier order. All that he was bound to do was, to apply, de-novo, his judicious mind to the entire material placed before him and form a fresh opinion. To that extent, he may have acted mindful of his earlier observations with respect to the earlier police report and material accompanying thereto, though it may be added here itself that he was not bound by any earlier conclusion and further he was free to from a contrary or different opinion. Only caution required was to pass such an order as may not render his fresh/second opinion whimsical especially if it was contrary to the earlier reasoned opinion, formed on the same material.

Such condition may stand satisfied even from a plain reading of the order and the flow of contents and language therein, if it is reflected that the same is a result of judicious application of mind to the necessary material placed before the learned Magistrate.

In this case, in light of the admitted facts noted above, mere statement in the order that the material had been perused, without anything more does not reflect the actual perusal or application of mind to the material. The Court requires the learned Magistrate to actually apply his judicious mind and not to self state that he has applied his mind. Looked from this angle, the impugned order dated 5.2.2018 cannot be sustained as other than a mere statement contained in the order that cognizable offence is made out or that the learned Magistrate has perused the material as brought before him, there is nothing to indicate that such an exercise has actually been done or that the satisfaction had arisen from such exercise.

Consequently, without entering the merits of the material accompanying either the first or the supplementary police report and without suggesting any particular course to be adopted by the learned Magistrate, the order dated 5.2.2018 is hereby set aside. The matter is remitted to the learned Magistrate to pass a fresh and appropriate order, in accordance with law, as expeditiously as possible, preferably within a period of one month from the date of the production of a certified copy of this order filed by either party. It is further made clear that this Court has deliberately not adverted to detailed facts and documents referred to in the course of arguments and has further not discussed whether the investigation conducted till now has been fair and proper, since those are aspects and issues that have to be examined by the learned Magistrate and any observation/s made by this court, at this stage, may hamper the exercise of discretion by the learned Magistrate, in exercise of his powers under the Code. It is left open to the complete discretion of the learned Magistrate to pass fresh and appropriate order, keeping in mind all his powers that otherwise exist. Thus, the learned Magistrate may not be influenced in exercise of all or any of powers vested in him, by any observation made in this order, as may be claimed or appear to be affecting the merits of the case in any manner.

The aforesaid exercise may be completed as expeditiously as possible within a period of one month from the date of production of certified copy of this order.

The applications are thus disposed of.  

Order dated: 25.07.2018

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