Gangaram And 2 Others vs State Of U.P. And Another
2021 Latest Caselaw 11426 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
Court No. - 89
 

 
Case :- APPLICATION U/S 482 No. - 17336 of 2021
 

 
Applicant :- Gangaram And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anil Kumar Bind
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

1. Whether summons issued on cyclostyled and printed proforma, qualifies the litmus test of being the real intent of the word "cognizance" is a question which falls for determination before this Court in the present proceeding.

2. Heard Sri Anil Kumar Bind, learned counsel for the applicants and Sri K.K. Rajbhar, who appears for opposite party nos. 1 and 2.

3. In view of the order which is being proposed to be passed today, there is no need to issue notice to the opposite party no. 2 as the learned counsel for the applicants as well as the learned A.G.A. have consented for disposal of the present application at the admission stage, particularly in view of the peculiar facts of the case, wherein only the order summoning applicants dated 06.11.2020 is subject matter of scrutiny on a technical issue as demonstrated in the latter part of the judgment.

4. This application u/s 482 Cr.P.C. has  been filed for quashing of the charge sheet no. 03/2019 dated 05.01.2019 and cognizance order dated 06.11.2020 as well as entire criminal proceeding of Case No. 3649 of 2020 (State Vs. Nanne and others) pending before Additional Civil Judge (Senior Division) Shahjahanpur arising out of Case Crime No. 247 of 2018, u/s 325, 120-B IPC, P.S. Allahganj, District Shahjahanpur.

5. Factual matrix of the case as worded in the present application are that a FIR was lodged by the opposite party no. 2 against one Laxman S/o Shankar, Prithiviraj S/o Lalla Singh and Kallu S/o Chakrapal before P.S. Allahganj, District Shahjahanpur on 27.06.2018, u/s 307, 504, 506 IPC with an allegation that the opposite party no. 2 as aged about 50 years, belonging to Kushwaha community R/o Village Chauki, Azampur P.S. Allahganj, Shahjahanpur and a litigation was going on between the opposite party no. 2 and Laxman S/o Shankar and later on having  been lost the said litigation, Laxman came to the house of opposite party no. 2 on 26.06.2018 at about 11 p.m. armed with a pistol 312 bore along with Prithiviraj S/o Lalla Singh and Kallu S/o Chakrapal and at that point of time the brother of the opposite party no. 2 being Gangaram was sleeping on the cot out side the house and the aforesaid accused pounced upon him and hurled abuses and threatening them to  withdraw the case and when the brother of opposite party no. 2 started shouting seeking help then the villagers who were present within the close vicinity came and then the accused took out their pistol shot and also threatened the brother as well as the opposite party no. 2 and brother of the opposite party no. 2 sustained injuries. A copy of the injury report of the brother of the opposite party no. 2 on record. The statement of the brother of the opposite party no. 2 was also obtained consequently, after investigation the Investigating Officer submitted a charge sheet on 05.01.2019 against the applicants alleging that the FIR so lodged against Laxman S/o Shankar, Prithiviraj S/o Lalla Singh and Kallu S/o Chakrapal was false and no case u/s 307, 504, 506 IPC were made out against them and on the contrary cases u/s325 and 120-B IPC are made against the applicants.

6. Accordingly on the 06.11.2020 the court of Additional Civil Judge (Senior Division) Shahjahanpur in the proceedings in case no. 3649 of 2020 (State Vs. Nanhe and others) in case crime no. Case Crime No. 247 of 2018 have issued summons against the applicants u/s 325, 120-B IPC. Challenging the charge sheet dated 05.01.2019 emanating from the criminal proceedings of case crime no. 3649 of 2020 (State Vs. Nanhe and others) in case crime no. Case Crime No. 247 of 2018, u/s 325, 120-B IPC, P.S. Allahganj, District Shahjahanpur as well as the cognizance order dated 06.11.2020 summoning the applicants pending before the Additional Civil Judge (Senior Division) Shahjahanpur, the present application has been preferred.

7. The word 'Cognizance' roots from an old French word "Conoisance" based on Latin word "Cognoscere" the word cognizance has not been deciphered and defined in procedural law being the Code of Criminal Procedure 1973. 

8. The learned counsel for the applicants has sought to argue that the present application is being confined to the challenge so made to the order dated 06.11.2020 summoning the applicants u/s 325, 120-B IPC as the applicants have been summoned on total non-application of mind on a cyclostyled format. In nutshell the argument of the learned counsel for the applicants is to the extent that summoning is a serious matter and the same cannot be restored without application of mind particularly when the order in question is cyclostyled wherein the blanks have been filled.

9. Countering the said submission the learned counsel for the opposite party no. 1 has argued that though the order under challenge being a summoning order is cyclostyled but it cannot said to be passed by total non application of mind as the order though it does not contain any discussion but it is a case wherein the court below has applied his mind.

10. I have gone through the argument so raised by the learned counsel for the applicants as well as learned A.G.A. who appear for opposite party no. 1 and perused the record.

11. Before adverting to the factual as well as legal position this Court finds necessary to extract the relevant statutory provisions which are germane to the issue in question.

Code of Criminal Procedure 1898 (Old Code)

"190. Cognizance of offence by Magistrate. - (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence -

(a) upon receiving a complaint of facts which constitute such offence :

(b) upon a report in writing of such facts made by any police-officer;]

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.

(2) The [State Government], or the District Magistrate subject to the general or special orders of the [State Government], may empower any Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or commit for trial.

(3) The [State Government] may empower any Magistrate of the first or second class to take cognizance under sub-section (1), clause (c), of offences for which he may try or commit for trial."

Code of Criminal Procedure 1973 (New Code)

Section 2 (c) " cognizable offence" means an offence for which, and" cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

(l) " non- cognizable offence" means an offence for which, and" non- cognizable case" means a case in which, a police officer has no authority to arrest without warrant;"

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.

12. It is noteworthy to mention here that the word cognizance has not been employed either in the Old Code or the New Code but in the new code the word "cognizable offence" and "non cognizable offence" are defined. In nutshell, taking cognizane means cognizance of an offence and not of offender. Once, the Magistrate takes the cognizance of an offence then it is the duty to find who is the real offender. The aforesaid process itself personifies taking cognizance is a serious matter which presupposes a condition whereby wherein the Magistrate has to apply its mind. Parliament has deliberately engrafted Section 190 under Chapter (XIV) containing the heading "Condition Requisite For Initiation Of Proceedings", providing that subject to the provisions of Chapter (XIV) any Magistrate of the first class, any Magistrate of the second class specially empowered in that behalf under sub-section (2) may take cognizance of an offence upon receiving the complaint of facts which constitute the offence, upon a police report of said facts, upon information received from any person other than the police officer or upon his own knowledge that said offence has been committed. Sub-Section (2) itself authorises Chief Judicial Magistrate to empower any Magistrate of second class to take cognizance under sub-section (1) of said offence as are within its competence to enquire into or trial. The procedure contemplated under section 190 of the New Code is an act to be committed judicially. The discretion has been casted upon the Magistrate concerned to act judicially keeping in account the facts of a particular case as well as law on the said subject. Section 190 of the New Code of Cr.P.C. itself is a starting point for taking appropriate judicial action as the Magistrate under the said sections has to apply its mind on the motion so set up in sub-clause (a)(b)(c) of Sub-Section (1) of Section 190 of the New Code.

13. To simplify the same it can be safely said that the Magistrate has to apply his independent mind so as to find out whether the material collected by Investigating Officer is sufficient to proceed further and whether the same constitutes violation of law so as to call a person to appear before criminal court to face trial. Logically the word cognizable and non-cognizable offence have been employed in the New Code so as to suggest that it is the Magistrate who exercises its powers u/s 190 to proceed against a person while summoning him for the purpose of investigation into two categories being cognizable and non-cognizable. The New Code no where contemplates the situation whereby wherein under the Magistrate concerned is to act as a post office. Whenever, any information of a cognizable offence is received or the same is suspected, the police authority so available with the police officer authorizes him to enter into the investigation of the same but wherein the information relates to non cognizable offence he has no power to investigate it without the order of the competent Magistrate. The said provision itself finds place in Section 155 of the New Code.

14. The word cognizance has also been defined in well known dictionaries which are often referred in legal fraternity being...

The Black's Law Dictionary Seventh Edition has defined the word which is as under:-

Cognizance (Kog-ni-zens), n. 1. The right and power to try and determine cases; JURISDICTION. 2. The taking of judicial or authoritative notice. 3. Acknowledgement or admission of an alleged fact; esp. (hist), acknowledgement of a fine. See FINE (1); FINE SUR COGNIZANCE DE DROIT. 4. Common-law pleading. In a replevin action, a plea by the defendant that the goods are held in bailment for another. Cf. AVOWRY.

Similarly, the P RAMANATHA AIYAR Law Lexicon Dictionary 1997 Edition has defined cognizance as under:-

Cognizance. Judicial notice or knowledge; the judicial recognition or hearing of a cause; jurisdiction, or right to try and determine causes. It is a word of the largest omport : embracing all power, authority and jurisdiction. The word "Cognizance" is used in the sense of "the right to take notice of and determine a cause." 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 of the suspected commission of an offence. (37 Cal 412=14 CWN 512-6 IC 8=11 Cr LJ 217.)

15. The word cognizance has defined in the dictionaries as referred to above does not involve any formal action but the same embraces to which the application of mind while proceeding judicially.

16. The word "taking cognizance" has being often matter of judicial interpretation and it has been held to be a positive act of application of mind.

17. The Hon'ble Apex Court in the case of R.R. Chari V. State of Uttar Pradesh reported in AIR 1951 SC 207 has held as under:-

"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"

18. Following the judgment in the case of R.R. Chari (Supra) the Hon'ble Apex court in the case of Ajit Kumat Palit Vs. State of West Bengal and Others AIR 1963 SC 765 has held as under:-

19. The provisions of s. 190 (1) being obviously, and on its own terms, inapplicable, the next question to be. considered is whether it is the requirement of any principle of general jurisprudence that there should be some additional material to entitle the Court to take cognizance of the offence. 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. It was stated in Gopal Marwari v. Emperor A.I.R. (1943) Pat. 245 by the learned judges of the Patna High Court in a passage quoted with approval by this Court in R. R. Chari v. State of Uttar Pradesh [1951] S.C.R. 312, 320 that the word, "cognizance' was used in the Code to indicate the point when the Magistrate or judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckerbutty I.L.R. 37 Cal. 412, 416 "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." Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled. Thus, a sessions judge cannot exercise that original jurisdiction which magistrates specified in s. 190(1) can, but the material on which alone he can apply his judicial mind and proceed under the Code is an order of commitment. But statutory provision apart, there is no set material which must exist before the judicial mind can operate. It appears to us therefore that as soon as a special judge receives the orders of allotment of the case passed by the State Government it becomes vested with jurisdiction to try the case and when it receives the record from the Government it can apply its mind and issue notice to the accused and thus start the trial of the proceedings assigned to it by the State Government.

19. In the case of Tularam And Others Vs. Kishore Singh 1977 4 SCC 459 the Hon'ble Apex Court has observed as under:-

7. The question as to what is meant by taking cognizance is no longer res integra as it has been decided by several decisions of this Court. As far back as 1951 this Court in the case of R. R. Chari v. State of Uttar Pradesh [1951] S.C.R. 312 observed as follows -

"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".

While considering the question in greater detail this Court endorsed the observations of Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee A.I.R. 1950 Cal. 347 which was to the following effect (1) [1951] S.C.R. 312. (2) A.I.R. 1950 Cal. 347.

"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), Criminal Procedure Code, he must not only have applied Ms mind to the contents of the petition but he must have done so far 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 inquiry '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".

8. Section 190 of the Code runs thus "190.(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 subsection (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".

It seems to us that there is no special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to, taking further action. Thus what section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made. in the complaint and decides to examine or test the validity of the said allegations The Court prescribes several modes in which a complaint can be disposed of after taking cognizance. In the first place. cognizance can be taken on the basis of three circumstances : (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 the police officer or upon his own knowledge, that an offence has been committed. These are the three grounds on the basis of which a Magistrate can take cognizance and decide to. act accordingly. It would further appear that this Court in the case of Narayandas Bhagwandas Madhavdas v. The State of West Bengal(1) observed the mode in which a Magistrate could take cognizance of an offence and observed as follows:-

"It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under section 19(1)

(a), Criminal Procedure Code, he, (1) [1960] 1 S.C.R. 93,106.

3-951SCI/77 must not only have applied his mind to the contents of the petition but 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 inquiry and report under section 202".

20. In the case of Hareram Satpathy Vs. Tikaram Agarwala And Others 1978 4 SCC 58 the Hon'ble Apex Court has observed as under:-

6.To the same effect is the decision of this court in Chandra Deo Singh v. Prokar Chandra Bose(3) where after a full discussion of the matter it was held that at the time of taking a decision whether a process should issue against the accused or not what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant so as to justify the issue of process and commencement of proceedings against the accused, and not whether the evidence is sufficient to warrant his conviction.

7. From the foregoing it is crystal clear that under section 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence.

8. In the instant case the Sub-Divisional Magistrate took cognizance of the offence on the police report, after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not ill our Judgment exceed the power vested in him under law.

10. This second point does not present any difficulty. lt is well settled that once the Magistrate has after satisfying himself prima facie that there is sufficient material for proceeding against the accused issued process against him, the High Court cannot go into the matter in exercise of its revisional jurisdiction which is very limited. The following observations made in Smt. Nagwwa v. Veeranna Shivalingappa Konjalai & ors (supra) are apposite in this connection:

"It is true that in coming to a decision as to whether a process would be issued the Magistrate can tale 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 o the accused. These considerations, in our opinion. are totally foreign to the scope and ambit of an inquiry under s. 202 of the Code of Criminal Procedure."

21. In the case of S.K. Sinha Chief Informant Vs. Videocon International Ltd. In Appeal (Criminal) 175 of 2007 decided on 25.01.2008 the Hon'ble Apex Court has observed as under:-

18. R.R. Chari v. State of Uttar Pradesh, 1951 SCR 312 was probably the first leading decision of this Court on the point. There, the police, having suspected the appellant-accused to be guilty of offences punishable under Section 161 and 165 of the Indian Penal Code (IPC) as also under the Prevention of Corruption Act, 1947, applied to the District Magistrate, Kanpur to issue warrant of arrest on October 22, 1947. Warrant was issued on the next day and the accused was arrested on October 27, 1947. On March 25, 1949, the accused was produced before the Magistrate to answer the charge-sheet submitted by the prosecution. According to the accused, on October 22, 1947, when warrant for his arrest was issued by the Magistrate, the Magistrate was said to have taken cognizance of offence and since no sanction of the Government had been obtained before that date, initiation of proceedings against him was unlawful. The question before the Court was as to when cognizance of the offence could be said to have been taken by the Magistrate under Section 190 of the Code. Considering the circumstances under which cognizance of offence under sub- section (1) of Section 190 of the Code can be taken by a Magistrate and referring to Abani Kumar Banerjee, the Court, speaking through Kania, C.J. stated:

It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-

cognizable offences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under section 167(b) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate.

19. Approving the observations of Das Gupta, J. in Abani Kumar Banerjee, this Court held that it was on March 25, 1949 when the Magistrate issued a notice under Section 190 of the Code against the accused that he took cognizance of the offence. Since before that day, sanction had been granted by the Government, the proceedings could not be said to have been initiated without authority of law.

20. Again in Narayandas Bhagwandas Madhavdas v. State of West Bengal, (1960) 1 SCR 93, this Court observed that when cognizance is taken of an offence depends upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuance of a search warrant for the purpose of an investigation or a warrant of arrest of accused cannot by itself be regarded as an act of taking cognizance of an offence. It is only when a Magistrate applies his mind for proceeding under Section 200 and subsequent sections of Chapter XV or under Section 204 of Chapter XVI of the Code that it can be positively stated that he had applied his mind and thereby had taken cognizance of an offence [see also Ajit Kumar Palit v. State of W.B. & Anr., (1963) Supp (1) SCR 953; Hareram Satpathy v. Tikaram Agarwala & Anr., (1978) 4 SCC 58].

21. In Gopal Das Sindhi & Ors. v. State of Assam & Anr., AIR 1961 SC 986, referring to earlier judgments, this Court said: We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word may in Section 190 to mean must. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code.

23. In Darshan Singh Ram Kishan v. State of Maharashtra, (1972) 1 SCR 571, speaking for the Court, Shelat, J. stated that under Section 190 of the Code, 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 said, taking cognizance does not involve any formal action or indeed action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, thus, takes place at a point when a Magistrate first takes judicial notice of an offence.

24. In Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors., (1976) 3 SCC 252, this Court said:

It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with must take cognizance". The word "may" gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from, being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

This raises the incidental question : What is meant by "taking cognizance of an offence" by a Magistrate within the contemplation of Section 190?. This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on 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, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. [see also M.L. Sethi v. R.P. Kapur & Anr., (1967) 1 SCR 520].

25. In the case on hand, it is amply clear that cognizance of the offence was taken by the Chief Metropolitan Magistrate, Mumbai on May 24, 2002, i.e., the day on which the complaint was filed, the Magistrate, after hearing the counsel for the department, took cognizance of the offence and passed the following order: Mr. S.A.A. Naqvi, counsel for the department is present. Complainant is public servant. Cognizance is taken. Issue summons to accused under Section 18(2)(3) of FERA, 73 read with Central Notification and r/w Section 68(1) of the said Act and r/w 56 (1)(i) and r/w Section 49(3) (4) of FEMA, 1999. Summons returnable on 7.2.2003 at 3 p.m. (emphasis supplied)

26. Undoubtedly, the process was issued on February 3, 2003. In our judgment, however, it was in pursuance of the cognizance taken by the Court on May 24, 2002 that a subsequent action was taken under Section 204 under Chapter XVI. Taking cognizance of offence was entirely different from initiating proceedings; rather it was the condition precedent to the initiation of the proceedings. Order of issuance of process on February 3, 2003 by the Court was in pursuance of and consequent to taking cognizance of an offence on May 24, 2002. The High Court, in our view, therefore, was not right in equating taking cognizance with issuance of process and in holding that the complaint was barred by law and criminal proceedings were liable to be quashed. The order passed by the High Court, thus, deserves to be quashed and set aside.

27. It was also contended by the learned counsel for the appellant that the relevant date for considering the question of limitation is the date of filing of complaint and not taking cognizance or issuance of process by a Court of law. In this connection, our attention was invited by the counsel to Bharat Damodar Kale & Anr. v. State of A.P., (2003) 8 SCC 559 and a recent decision of this Court in Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC

394. In Japani Sahoo, one of us (C.K. Thakker, J.), after considering decisions of various High Courts as also Bharat Damodar Kale, stated:

52. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law. If that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the Court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the Court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a Court of Law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the Court may make it unsustainable and ultra vires Article 14 of the Constitution.

22. In the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation AIR 2015 SC 1923 the Hon'ble Apex Court has observed as under:-

"46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.

48. However, there has to be a proper satisfaction in this behalf which should be duly recorded by the Special Judge on the basis of material on record. No such exercise is done. In this scenario, having regard to the aforesaid aspects coupled with the legal position explained above, it is difficult to sustain the impugned order dated 19.03.2013 in its present form insofar as it relates to implicating the appellants and summoning them as accused persons. The appeals arising out of SLP (Crl.) No. 2961 of 2013 and SLP (Crl.) No. 3161 of 2013 filed by Mr. Sunil Bharti Mittal and Ravi Ruia respectively are, accordingly, allowed and order summoning these appellants is set aside. The appeals arising out of SLP (Crl.) Nos. 3326-3327 of 2013 filed by Telecom Watchdog are dismissed. "

23. Recently, in the case of Sunil Todi And Others Vs. State of Gujrat and Another in Criminal Appeal No. 1446 of 2021 decided on 03.12.2021 the Hon'ble Supreme Court has held as under:-

"33. The provisions of Section 202 which mandate the Magistrate, in a case where the accused is residing at a place beyond the area of its jurisdiction, to postpone the issuance of process so as to enquire into the case himself or direct an investigation by police officer or by another person were introduced by Act 25 of 2005 with effect from 23 June 2006. The rationale for the amendment is based on the recognition by Parliament that false complaints are filed against persons residing at far off places as an instrument of harassment. In Vijay Dhanuka v. Najima Mamtaj20, this Court dwelt on the purpose of the amendment to Section 202, observing:

"11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process ''in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction' and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.

12. The words ''and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction' were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far-off places in order to harass them. The note for the amendment reads as follows:

''False complaints are filed against persons residing at far-off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.'

The use of the expression "shall" prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word "shall" in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression "shall" and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate."

34. This Court has held that the Magistrate is duty bound to apply his mind to the allegations in the complaint together with the statements which are recorded in the enquiry while determining whether there is a prima facie sufficient ground for proceeding. In Mehmood UI Rehman v. Khazir Mohammad Tunda21, this Court followed the dictum in Pepsi Foods Ltd. v. Special Judicial Magistrate, and observed that setting the criminal law in motion against a person is a serious matter. Hence, there must be an application of mind by the Magistrate to whether the allegations in the complaint together with the statements recorded or the enquiry conducted constitute a violation of law. The Court observed:

"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter."

***

"22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."

These decisions were cited with approval in Abhijit Pawar v. Hemant Madhukar Nimbalkar23. After referring to the purpose underlying the amendment of Section 202, the Court observed:

"25. ... the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. This requirement is emphasised by this Court in a recent judgment Mehmood Ul Rehman v. Khazir Mohammad Tunda [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]..."

35. While noting that the requirement of conducting an enquiry or directing an investigation before issuing process is not an empty formality, the Court relied on the decision in Vijay Dhanuka which had held that the exercise by the Magistrate for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused is nothing but an enquiry envisaged under Section 202 of the Code.

36. In Birla Corporation Ltd. v. Adventz Investments and Holdings24, the earlier decisions which have been referred to above were cited in the course of the judgment. The Court noted:

"26. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 CrPC or whether the complaint should be dismissed by resorting to Section 203 CrPC on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 CrPC, the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused."

Hence, the Court held:

"33. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to the accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]..."

The above principles have been reiterated in the judgment in Krishna Lal Chawla v. State of U.P."

24. However, the Hon'ble Apex Court in the case of Bhushan Kumar And Another vs. State (Nct Of Delhi) And Another reported in 2012 5 SCC 424 has observed as under;-

"12. A summon 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. Willful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

13. 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 pre-requisite for deciding the validity of the summons issued.

14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.

19. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order."

25. Though in the case of Bhushan Kumar (Supra) it has been held that it is not mandate that Magistrate is to explicitly state reasons for issuances of summons but the said judgment cannot be said to have endorsed the principles of law that there should not be any independent application of mind while issuing summons.

26. Coming back to the case at hand it will clearly reveal that the order under challenge summoning the applicants is nothing but on a printed proforma wherein the blanks have been filled by the pen. The said procedure so adopted by the court below is no where either provided under or contemplated in New Code. Nonetheless, in case such type of order are allowed to be made a part of the process of criminal jurisprudence it will tantamount to be a situation whereby wherein under the order of summoning the accused would be said to be final as no superior court of law can find out as to what contemplated in the mind of the Magistrate who passed the order.

27. Even otherwise, the complete set of procedure has been earmarked in the New Code for the cases arising out of the FIR as well as complaint cases. The only safeguard which is available in criminal jurisprudence at the stage of ordering for investigation is to find out as to whether offence either cognizable or non-cognizable are made out or not. The Magistrate have been empowered under law to pass orders which are not only the legal but also must contain any of the material so as to show that there has been application of mind by the Magistrate. Particularly, when the orders for summoning the individuals is a serious matter which is prone to challenge in appropriate court of law.

28. This Hon'ble Court has eventually not subscribed to the practice of summoning the accused in printed proforma in cyclostyled manner wherein the blanks are to be filled by pen in the following decisions:-

(a). In the case of Ankit Vs. State of U.P. And Another passed in Application U/S 482 No.19647 of 2009 decided on 15.10.2009, this Court has observed as under:-

"7.Paper No. 31 is the certified copy of the impugned order, which has been initialed by Sri Talevar Singh, the then judicial magistrate-III, Saharanpur. This order has been prepared by filling up the blank on the printed proforma. The blanks in the printed proforma appear to have been filled up by some employee of the court and the learned magistrate has only put his short signature (initial) above the seal of the court containing his name. All the details of the case including the name, section, P.S., district, case number and address of the applicant have been filled up by some employee of the court on the printed proforma. Therefore, this type of the order shows non- application of judicial mind on the part of the learned magistrate passing the same. After mentioning the name, parentage, address, case number, section and name of P.S. by filling up the blanks on the printed proforma, the following matter is also printed :-

"मैने आरोप पत्र, केस डायरी व अन्य प्रपत्रों का परिशीलन किया। अभियुक्त के विरूद्घ उक्त धाराओं के अपराध के विचारण का पर्याप्त प्रथम दृष्टया साक्ष्य है। अभियुक्त के विरूद्घ उक्त धाराओं के अपराध का प्रसंज्ञान लिया जाता है। आदेश हुआ कि आरोप पत्र दर्ज रजिष्टर होवे तथा अभियुक्त को द्वारा सम्मन दिनांक ........के लिए तलब किया जावे।"

8. In the beginning, the name of the court, case number, state vs. ....... under section ......... P.S. ......... District ......... case crime No. ........ /2009 also have been printed and blanks have been filled up by mentioning the case number, name of the accused, section, P.S. District etc. by some employee. Below afore cited printed matter, the following sentence has been mentioned in handwriting "अभियुक्त अंकित की गिरफ्तारी मा0 उच्च न्यायायल द्वारा Crl. Writ No. 19559/08 अंकित बनाम राज्य में पारित आदेश दिनांक 5.11.08 द्वारा आरोप पत्र प्राप्त होने तक स्थगित थी।"

Below aforesaid sentence, the seal of the court containing name of Sri Talevar Singh, the then Judicial Magistrate-III, has been affixed and the learned magistrate has put his short signature (initial) over his name. The manner in which the impugned order has been prepared shows that the learned magistrate did not at all apply his judicial mind at the time of passing this order and after the blanks were filled up by some employee of the court, he has put his initial on the seal of the court. This method of passing judicial order is wholly illegal. If for the shake of argument, it is assumed that the blanks on the printed proforma were filled up in the handwriting of learned magistrate, even then the impugned order would be illegal and invalid, because order of taking cognizance of any other judicial order cannot be passed by filling up blanks on the printed proforma. Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. 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."

(b). In the case of Abdul Rasheed and Others Vs. State of U.P. and Another passed in Application U/S 482 No. 7279 of 2006 decided on 06.09.2010 this Court has observed as under:-

"6. 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 20.12.2018, therefore, the impugned order cannot be upheld.

7. Judicial orders cannot be allowed to be passed in a mechanical manner either by filling in blank on a printed proforma or by affixing a ready made seal etc. of the order on a plain paper. Such tendency must be deprecated and cannot be allowed to perpetuate. This reflects not only lack of application of mind to the facts of the case but is also against the settled judicial norms. Therefore, this practice must be stopped forthwith."

(c). In the case of Qavi Ahmad Vs. State of U.P. and Another passed in Criminal Revision No. 3209 of 2010 decided on 14.10.2011 this Court has observed as under:-

"Learned counsel for the revisionist has inter alia contended that the order taking cognizance and issuing process has been passed by the learned Magistrate on a printed proforma, which establishes that he has not applied his mind to the evidence on record in order to take cognizance of the offence concerned. He has relied on case laws like Harishchandra Prasad Mani and others Vs. State of Jharkhand and another (2007) 15 Supreme Court Cases 494, Fakhruddin Ahmad vs. State of Uttaranchal and another (2008) 17 Supreme Court Cases 157 and Ankit Vs. State of U.P. and others U.P. Criminal Report 2009 (3) 427.

Per contra, learned A.G.A. has argued that there are sufficient materials collected by the Investigating Officer making out a prima facie case against the accused and, therefore, the order impugned is neither incorrect nor illegal nor improper and revision lacks merit, but he has not challenged the fact that the order impugned is on printed proforma.

I have applied my judicial mind to the facts, circumstances and the order impugned.

In the case of Fakhruddin Ahmad (supra), the Hon'ble Supreme Court has observed that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by "taking cognizance". 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 title 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.

In the case of Harishchandra Prasad Mani and others (supra), it was held in para 12 that it is well settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur v. State of Punjab AIR 1960 SC 866: (1960) 3 SCR 388: 1960 Cri LJ 1239, State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426, Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305: 1993 SCC (Cri) 36, Raghubir Saran (Dr.) v. State of Bihar AIR 1964 SC 1:(1964) 2 SCR 336:(1964) 1 CRi LJ 1, State of Karnataka v. M Devendrappa (2002) 3 SCC 89: 2002 SCC (Cri) 539 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122: 2005 SCC (Cri) 283.

The bare perusal of the order impugned depicts that learned Magistrate does not appear to have applied his judicial mind towards the material collected by the Investigating Officer against the revisionist in this case.

On similar ground, this Court has already held that the impugned order being prepared and passed by filling up the blanks on the printed proforma is wholly illegal and invalid.

The result is that order impugned dated 17.7.2010, which has been prepared and passed by filling the blanks on the printed proforma, is illegal, incorrect and improper."

(d). In the case of Vineet Agarwal And 2 Others Vs. State of U.P. and Another passed in Application U/S 482 No. 15450 of 2020 decided on 11.11.2020 this Court has observed as under:-

"5. It has been further submitted that the impugned summonig order dated 11.09.2019 is not a judicial order as it has been passed on a printed proforma without recording any reasons in support of satisfaction for taking cognizance against the applicants and merely the case, Section, date of the order and date of the summon have been filled.

17. In the case of Harishchandra Prasad Mani and others (supra), it was held in para 12 that it is well settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur v. State of Punjab AIR 1960 SC 866: (1960) 3 SCR 388: 1960 Cri LJ 1239, State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426, Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305: 1993 SCC (Cri) 36, Raghubir Saran (Dr.) v. State of Bihar AIR 1964 SC 1:(1964) 2 SCR 336:(1964) 1 CRi LJ 1, State of Karnataka v. M Devendrappa (2002) 3 SCC 89: 2002 SCC (Cri) 539 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122: 2005 SCC (Cri) 283.

18. This type of order has already been held unsustainable by this Court in the case of Ankit (supra) relying on in a number of decisions of the Apex Court. The relevant portion of the said decision, is extracted below:

"Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4^) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. 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."(Emphasis supplied)

19. In view of the above, the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated. The summoning of an accused in a criminal case is a serious matter and the order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto.

20. In light of the judgments referred to above, it is explicitly clear that the order dated 11.09.2019 passed by Additional Chief Judicial Magistrate, Chhibramau, Kannauj is cryptic and does not stand the test of the law laid down by the Apex Court. Consequently, the order dated 11.09.2019 cannot be legally sustained, as the Magistrate failed to exercise the jurisdiction vested in him/her resulting in miscarriage of justice."

(e). In the case of Ved Krishna Vs. State of U.P. and Another passed in Application U/S 482 No. 683 of 2021 decided on 11.02.2021 this Court has observed as under:-

"The learned counsel for the petitioner has given much emphasis that if the cognizance has been taken on the printed proforma, the same is not sustainable in the eye of law. In this regard, he has placed reliance on the following decisions of this Court.

Learned counsel for the petitioner contends that such a proforma order could not have been passed as the same has to necessary involve application of mind by the Magistrate concerned.

Learned AGA did not dispute the correctness of the submissions of the learned counsel for the petitioner.

Taking into consideration the aforesaid, this petition is allowed and the impugned summoning order dated 24.6.2019 passed by the Chief Judicial Magistrate,Faizabad in Criminal Case No. 6951 of 2019, State Vs. Ved Krishna and another, arising out of case crime no. 639 of 2018, under sections 494,498A,323,504 and 506 IPC, Police Station Kotwali Ayodhya, District Faizabad is set aside. The learned Magistrate concerned is directed to pass a fresh order in accordance with law within a period of one month from the date of production of a certified copy of this order before him."

(f). In the case of Deepak Yadav @ Lalla And Another Vs. State of U.P. and Another passed in Application U/S 482 No. 6932 of 2021 decided on 14.06.2012 this Court has observed as under:-

"Learned counsel for the applicants has submitted that in the instant case the order taking cognizance has been passed in a printed proforma by filling in the blanks and as such, the same cannot be sustained in the eyes of law being based on non application of mind and passed in a routine manner.

Per contra, learned AGA has submitted that necessary sections and the name of the applicants has been mentioned by filling in the blanks.

Considering the submissions of counsel for the parties and perusing the order, it is evident that the impugned order has been passed by filling in the blanks, which is not sustainable in the eyes of law and, therefore, the impugned order dated 5.12.2019 is liable to be set aside.

In view of the above, the impugned order dated 5.12.2019, which has been passed on a printed proforma, is set aside with a direction to the court below to pass fresh speaking and reasoned order in accordance with law preferably within two months from the date of production of a certified copy of this order."

(g). In the case of Smt Rubina Khan Vs. State of U.P. and Another passed in Application U/S 482 No. 7854 of 2021 decided on 10.08.2021 this Court has observed as under:-

"It is vehemently urged by learned counsel for the applicant that the impugned summoning order dated 08.11.2019 is not sustainable in the eye of law, as the same has been passed in mechanical manner without applying the judicial mind, because on the face of record itself it is apparent that impugned summoning order dated 08.11.2019 has been passed by the Magistrate concerned on printed proforma by filling up the gaps, therefore the same is liable to be quashed by this Court.

In view of the above, the conduct of the judicial officers concerned in passing orders on printed proforma by filling up the blanks without application of judicial mind is objectionable and deserves to be deprecated. The summoning of an accused in a criminal case is a serious matter and the order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto, whereas the impugned summoning order was passed in mechanical manner without application of judicial mind.

In light of the judgments referred to above, it is explicitly clear that the order dated 5.5.2019 passed by learned Chief Judicial Magistrate, Rampur is cryptic and does not stand the test of the law laid down by the Hon'ble Apex Court. Consequently, the cognizance order dated 08.11.2019 cannot be legally sustained, as the Magistrate failed to exercise the jurisdiction vested in him resulting in miscarriage of justice."

29. In the light of the judgment so referred to above inescapable conclusion is drawn that the order dated 06.11.2020 passed by Additional Civil Judge (Senior Division) Shahjahanpur, does not stand the test of the law laid down by the Hon'ble Apex Court as referrd to above. Consequently, the cognizance order dated 06.11.2020 cannot be legally sustained and the same is liable to be set aside.

30. Accordingly, the present Criminal Misc. Application under Section 482 Cr.P.C is allowed. The impugned cognizance order dated 06.11.2020 passed by Additional Civil Judge (Senior Division) Shahjahanpur in Case No. 3649 of 2020, Case Crime No. 247 of 2018, under section 325, 120B I.P.C. registered at Police Station Allahganj, District Shahjahanpur is, hereby, quashed and the matter is remanded back to Additional Civil Judge (Senior Division) Shahjahanpur with a direction to decide afresh the issue for taking cognizance and summoning the applicants and pass appropriate orders in accordance with law keeping in view the observations made by this Court as well as the direction contained in the judgments referred to above within a period of two months from the date of production of a certified/computer generated copy of this order.

Order Date :- 4.12.2021

Nisha