Allahabad High Court
Rohit Kumar Katiyar vs State Of U.P. And Another on 13 January, 2021
Bench: Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- APPLICATION U/S 482 No. - 16334 of 2020
Applicant :- Rohit Kumar Katiyar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mahendra Kumar Singh Chauhan,Bharat Garg
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Varma,J.
Heard learned counsel for the applicant and Ms. Seema Shukla, learned A.G.A. for the State. Perused the record.
This application under Section 482 Cr.P.C. has been filed to quash the impugned charge-sheet dated 31.05.2019 in Case Crime No. 473 of 2018, under Sections 323, 504, 506, 406 IPC, Police Station Barra, District Kanpur Nagar, now registered as Criminal Case No. 33522 of 2019 (NCR No. UPKN040335792019) (State Vs. Parshuram Katiyar and others), pending in the Court of Special Chief Judicial Magistrate, Kanpur Nagar as well as all consequential proceedings thereon.
It has been submitted by learned counsel for the applicant that the concerned Judicial Magistrate did not apply his judicial mind at the time of passing the summoning order dated 20.07.2019 as the impugned summoning order has been passed on a printed proforma, only the blanks have been filled up, which is not permissible under the law. A certified copy of the impugned summoning order is annexed as Annexure-6 to the affidavit.
Elaborating his submissions, learned counsel for the applicant submitted that in the printed proforma only the case, section, date of the order and date of summons have been filled by hand. Learned counsel for the applicant further submits that the court below while summoning the applicant has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling the material and visualizing the case on the touchstone of probability should not summon accused persons to face the trial.
Learned counsel for the applicant has confined his argument only to the extent that the impugned summoning order is a proforma based order and the same has been passed without applying his judicial mind, therefore, is illegal and liable to be quashed.
On the other hand, learned AGA has opposed the present application made by learned counsel for the applicant but could not dispute the submissions made by learned counsel for the applicant.
The arguments advanced on behalf of the applicant have substance. The use of proforma in passing the judicial order is not proper and the order of summoning the applicant has been passed without application of mind.
In the case of Fakhruddin Ahmad Vs. State of Uttranchal and another (2008) 17 SCC 157 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.
This Court in the case of Ankit Vs. State of U.P. and another [2009 (9) ADJ 778] while relying upon a number of decisions of the Apex Court has held as under:
"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)
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.
In light of the judgments referred to above, it is explicitly clear that the order dated 20.07.2019 passed by the Special Chief Judicial Magistrate, Kanpur Nagar does not stand the test of the law laid down by the Apex Court.
Accordingly, the impugned summoning order dated 20.07.2019 is hereby quashed. The court concerned is directed to pass a fresh order on the complaint, preferably within a period of one month from the date of production of a copy of this order.
With the above direction, the application stands allowed.
Order Date :- 13.1.2021
Lbm/-
