Vijay Kumar Pandey & Ors. vs State Of U.P. & Anr.
2021 Latest Caselaw 10051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                            Reserved
 

 
Case :- U/S 482/378/407 No. - 2199 of 2021
 

 
Applicant :- Vijay Kumar Pandey & Ors.
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Applicant :- Prabhat Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Saroj Yadav,J.

1. This petition under Section 482 Cr.P.C. has been filed to quash chargesheet no.1/2019 dated 27.8.2019 under Sections 384, 504 Indian Penal Code (in short 'I.P.C.'), Police Station Mishrikh, District Sitapur and cognizance order dated 16.3.2020 passed by the Additional Chief Judicial Magistrate-I, Sitapur in Case No.8917 of 2020 arising out of Case Crime No.104 of 2018 State Vs. Salik Ram Maurya and others. The petitioners also pray to quash cognizance order dated 16.3.2020.

2. Brief factual matrix necessary for disposal of this petition is as under :-

3. On 15.3.2018, an F.I.R. No.104/2018 was registered on the basis of a written complaint moved by the complainant Deena Nath Shukla. In the complaint, it was alleged that the complainant and other shop keepers went to Nagarpalika office to get solved their problems. There the Head Clerk Maurya and Press reporters of Hindustan Newspaper forcibly extorted money. They were sent by Head Clerk and the official Pandey was alongwith them. When the shop keepers objected, the Head Clerk Maurya and the official Pandey asked them to do whatever they like, abused them and ousted them from Nagarpalika premises.

After investigation, chargehseet was submitted. The court concerned took cognizance and summoned the petitioners. Being aggrieved by this order, the petitioners have filed this petition.

4. Heard learned counsel for the petitioners and learned A.G.A. for the respondent State.

5. Counsel for the petitioners submitted that the F.I.R. does not disclose as what has been taken in extortion. The story of prosecution is totally vague. The investigating officer recorded cyclostyle statements of some shop keepers without taking their bonds. In fact, all the witnesses including the complainant were interested to keep their shops near Parikrama Mela area against the prescribed norms and when they were checked, they concocted a false story to mount pressure. He further submitted that learned Magistrate while taking cognizance, did not peruse the case diary and did not apply its mind rather put its signature in routine manner. The learned counsel further submitted that the order is on printed format and no reason has been disclosed for the satisfaction of the court concerned while taking cognizance hence the entire proceedings including chargesheet and the order of taking cognizance should be quashed.

6. Learned counsel for the petitioners relied upon the following case laws :-

	(a).    Judgement and order 18.1.2021 passed by this 	Court at Allahabad in Crl. Misc. Case No.18422 of 2020 	(U/s 482 Cr.P.C.) : Sanjay and three others Vs. State of 	U.P. and another. 
 
	(b).   Ankit Vs. State of U.P. and another reported in 	2010(1) JIC 432 (All).
 
	 (c ).   Judgement and order 11.2.2021 passed by this 	Court in Crl. Misc. Case No.683 of 2021 (U/s 482 	Cr.P.C.) : Ved Krishna Vs. State of U.P. and another. 
 

7. Contrary to it, learned A.G.A. submitted that while taking cognizance on the basis of police report, the court is not obliged to give any reason, because the investigating officer has submitted the chargesheet after collecting credible evidence against the accused/petitioners. At the time of taking cognizance, no opportunity is given either to the prosecution or to the accused. So the Court is not obliged to give reasons rather to make any change what has been submitted before the court.

8. Considered the rival submissions, perused the record and gone through the case laws cited.

9. Cognizance of offence is taken by the Magistrate/court under Section 190 of The Code of Criminal Procedure, 1973 (in short 'Cr.P.C.'), which runs as under :-

"190. 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.
 
	(2) The Chief Judicial Magistrate may empower any 	Magistrate of the second class to take cognizance under 	sub- section (1) of such offences as are within his 	competence to inquire into or try."
 

10. The word 'cognizance' has not been defined in the Cr.P.C. In a literal sense, it means 'to be aware of' the matter but when it comes in respect of a crime, coming before court, it means 'judicial notice of an offence'. For taking cognizance by a court, it does not require any formal action by the court because when the court applies its mind to the alleged crime for the purpose of proceeding further, according to procedure prescribed under Cr.P.C., in other words starts the trial on the basis of material submitted before it, cognizance can be said to have taken. Court moves forward only after taking cognizance and not earlier. It is a kind of registration of case in the court on the basis of the material collected by the investigating officer after completing investigation.

Taking cognizance on the basis of the police report under Section 190(1) (b) Cr.P.C. differs from cognizance taken under Section 190 (1) (a) which is taken on the basis of complaint case filed in a court. In a complaint case, the court/ magistrate takes cognizance after making an inquiry according to the procedure prescribed for the complaint case.

11. When cognizance is taken under Section 190(1) (b) i.e. on the basis of police report, the Magistrate is not obliged to give reasons. It is a kind of judicial notice of the offence/ offences on the basis of police report submitted after investigation coming to the conclusion that the offence was committed by the accused person/ persons. At this stage, since no opportunity of hearing is given even to the prosecution i.e. the authority submitting chargesheet, so the court/ magistrate is not expected to pass a reasoned order.

12. In this regard, Hon'ble Apex Court in Criminal Appeal No.224 of 2019 State of Gujrat Vs. Afroz Mohammed Hasanfatta (arising out of Special Leave Petition (Crl.) No.6068 of 2017 ) decided on 5.2.2019, has held as under :-

"22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the material placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality."

13. In Raj Kumar Agarwal Vs. State of U.P. and another reported in 1999 SCC Online All 1394, Allahabad High Court has held as under :-

"8. The cognizance of the offences are taken by the Magistrate under Section 190 Cr. P.C. Clause (a) provide for the cognizance on receiving a complaint and Clause (b) provide for cognizance upon a police report. The procedure for taking cognizance upon complaint has been provided in Chapter-XV under Sections 200 to 203. A complaint may be dismissed under Section 203 Cr. P.C. after recording the reasons for doing so. If the complaint is not dismissed Under Section 203, the process are issued under Section 204 Cr. PC. Section 204 is in a different Chapter-XVI, but applies to complaint cases as well as to the cases instituted on police report, and this is the only provision under which the process are issued by the Magistrate in a case after taking cognizance. The procedure for trial of warrant cases has been provided in Chapter-XIX. In the present case the cognizance has been taken upon a police report and therefore, I confine myself to the cases instituted on a police report. Under Section 239 Cr. P.C. the Magistrate after considering the police report and the documents and after recording the statement of the accused and hearing the prosecution and the accused, can discharge the accused. If the accused is not discharged, the charge is framed Under Section 240 Cr. P.C. and after the evidence of prosecution and accused the final judgment is pronounced u/S. 248 Cr. P.C. As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. P.C. detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law, for example, it is barred for want of proper sanction for prosecution or is barred by limitation etc. At the stage of Section 204 Cr. P.C. if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons."

14. In Bhushan Kumar and another Vs. State (NCT of Delhi) and another : (2012) 5 SCC 424, the Hon'ble Supreme Court has held as under :-

"11. In Chief Enforcement Officer v. Videocon International Ltd. (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."

15. In the light of the observations made in the above referred cases of Hon'ble Supreme Court as well as of this court, it is clear that when the cognizance is taken on the basis of the police report, the magistrate is not obliged to pass a detailed reasoned order because submission of chargesheet is considered as sufficient ground for proceeding at the stage of taking cognizance and issuing process under Section 204 Cr.P.C. In other words, the cognizance is a kind of judicial notice for starting the trial.

16. The case laws cited (supra) by the learned counsel for the petitioners do not help the petitioner in the light of the observations of Hon'ble Supreme Court made in the above cited case laws. Hence this petition is devoid of any merits and liable to be dismissed.

17. It is accordingly dismissed.

.

(Saroj Yadav, J)

Order Date :- 11.8.2021

Shukla