Babu @ Naseem & Others vs State Of U.P. & Another
2021 Latest Caselaw 4217 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 28
 
Case :- U/S 482/378/407 No. - 1520 of 2021
 
Applicant :- Babu @ Naseem & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Sheikh Mohammad Ali
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Kunvar Srivastav,J.

1. The case is called out.

2. Learned counsel for the applicants Sri Sheikh Mohammad Ali, Advocate and learned A.G.A. for the State are present in the Court.

3. The present application under Section 482 Cr.P.C. is moved on behalf of accused-applicants with following prayer:-

"That by means of the instant petition petitioners are challenging the impugned summoning order dated 16.9.2020 passed by Additional Civil Judge (J.D.)/Judicial Magsitrate-II, Bahraich in Criminal Case No.9645/2020, State Versus Babu @ Naseem and others, relating to case crime no. 204/2020, under Sections 323, 504, 506, 452, 325 of I.P.C. at police station Huzurpur, District Bahraich by means of which the petitioners have been summoned to face the trial on the basis of false and concocted story and also against the charge sheet dated 11.6.2020."

4. On perusal of record, it seems that vide order dated 16.09.2020, learned Additional Civil Judge (J.D.)/Judicial Magsitrate-II, Bahraich purported to have taken cognizance of offence and issued summons, fixing 13.10.2020, to the accused. It is obvious from the face of the summons that it is a typographical format having several blanks to be filled mutatis mutandis as and when required. It further appears that the blanks are filled up with date only and lastly the initial is put by the concerned Additional Civil Judge (J.D.)/Judicial Magsitrate-II, Bahraich.

5. Nothing has been endorsed with regard to perusal of the charge sheet, consideration upon the evidences, satisfaction as to constitution of offence found thereupon, is recorded in the handwriting of the said Judicial Magsitrate-II, Bahraich. It manifest on it's face that there is a non-application of judicial mind by the concerned officer.

6. The order dated 16.09.2020 of summoning the accused challenged in the instant application under Section 482 Cr.P.C. is being reproduced hereunder so as to find out the answer whether the concerned court, Additional Civil Judge (J.D.)/Judicial Magsitrate-II, Bahraich has legally taken cognizance of offence, while passing the order aforesaid and to further discuss legality of passing the summoning order against a person in a criminal case, in such a mechanical way, by filling the blanks in the typographed format. The order dated 16.09.2020 is quoted hereunder:-

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धारा - 323]504]506]452]325 I.P.C.

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आदेश

ntZ jft0 gksA vfHk;qä tfj;s lEeu fnukad 13&10&2020 dks ryc gksA

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7. Passing of summoning order in such a mechanical way without reflecting the application of judicial mind over the allegations/police report under Section 190 of the Criminal Procedure Code, 1973 by the Magistrate has become prevalent in their practice, as it is seen in applications moved by aggrieved persons before the High Court under Section 482 of the Cr.P.C.

8. In para 17 of Fakhruddin Ahmad Vs. State of Uttaranchal and Another reported in (2008) 17 SCC 157, Hon'ble the Supreme Court held as under :-

"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."

9. It would be pertinent to cite some more decisions of Hon'ble the Supreme Court which found place in the judgment in the case of Prasad Shrikant Purohit Vs. State of Maharashtra and Another reported in (2015) 7 SCC 440. The relevant paras are quoted hereunder:-

68. Mr Lalit, learned counsel in the course of his submissions relied uponAjit Kumar Palit v. State of W.B. [AIR 1963 SC 765 : (1963) 1 Cri LJ 797] In the said decision with reference to the expression "cognizance" a three-Judge Bench of this Court has explained what is really meant by the said expression in the following words in para 19: (AIR p. 770)

"19. ... 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 [1943 SCC OnLine Pat 5 : AIR 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 U.P. [AIR 1951 SC 207 : (1951) 52 Cri LJ 775 : 1951 SCR 312] (SCR at p. 320 : AIR at p. 210) 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 Sourindra Mohan Chuckerbutty v. Emperor[1910 SCC OnLine Cal 41 : ILR (1910) 37 Cal 412] : (ILR at p. 416: SCC OnLine Cal)

''... 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."

(emphasis supplied)

In the above-extracted portion the reference made to the earlier judgment inR.R. Chari case reported in R.R. Chari [AIR 1951 SC 207 : (1951) 52 Cri LJ 775 : 1951 SCR 312] (AIR at p. 210, para 8) that the word "cognizance" was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence throws sufficient light to state that at that very moment when a Magistrate takes judicial notice of an offence, the requirement of cognizance of such offence will get fulfilled. Therefore, the said decision also fully supports our conclusion on the question of taking cognizance by the competent court.

72. In R.R. Chari [AIR 1951 SC 207 : (1951) 52 Cri LJ 775 : 1951 SCR 312] , in para 8, this Court made it clear that the word "cognizance" is used by the Court to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. Therefore, primarily cognizance of an offence takes place when a Judicial Magistrate applies his mind and takes judicial notice of the offence. In fact that is what has been even statutorily stipulated under Section 190(1) CrPC.

73. In Darshan Singh Ram Kishan [(1971) 2 SCC 654 : 1971 SCC (Cri) 628 : AIR 1971 SC 2372] , in para 8, with particular reference to Section 190, this Court has held as under: (SCC p. 656)

"8. As provided by Section 190 of the Code of Criminal Procedure, 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 held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report."

(emphasis supplied)

The above passage referred to in the said decision makes the position explicitly clear that cognizance would take place at a point when a Magistrate first takes judicial notice of the offence either on a complaint or on a police report or upon information of a person other than the police officer. Taking judicial notice is nothing but perusing the report of the police officer, proceeding further on that report by opening the file and thereafter taking further steps to ensure the presence of the accused and all other consequential steps including at a later stage, depending upon the nature of offence alleged, to pass necessary order of committal to Court of Session.

74. In Salap Service Station [1994 Supp (3) SCC 318 : 1994 SCC (Cri) 1713] , the question as to what is the implication of a supplementary report filed by the investigating agency under Section 173(8) CrPC was considered. While dealing with the same, it has been stated as under in para 2: (SCC p. 319)

"2. ... It may be mentioned here that in the supplementary charge-sheet allegations are to the effect that there was violation of Direction 12 of the Control Order. The question of taking cognizance does not arise at this stage since cognizance has already been taken on the basis of the main charge-sheet. What all Section 173(8) lays down is that the investigating agency can carry on further investigation in respect of the offence after a report under sub-section (2) has been filed. The further investigation may also disclose some fresh offences but connected with the transaction which is the subject-matter of the earlier report. ... The purpose of sub-section (8) of Section 173 CrPC is to enable the investigating agency to gather further evidence and that cannot be frustrated. If the materials incorporated in the supplementary charge-sheet do not make out any offence, the question of framing any other charge on the basis of that may not arise but in case the court frames a charge it is open to the accused persons to seek discharge in respect of that offence also as they have done already in respect of the offence disclosed in the main charge-sheet. The rejection of the report outright at that stage in our view is not correct."

(emphasis supplied)

The above statement of law with particular reference to Section 173(8) CrPC makes the position much more clear to the effect that the filing of the supplementary charge-sheet does not and will not amount to taking cognizance by the court afresh against whomsoever again with reference to the very same offence. What all it states is that by virtue of the supplementary charge-sheet further offence may also be alleged and charge to that effect may be filed. In fact, going by Section 173(8) it can be stated like in our case by way of supplementary charge-sheet some more accused may also be added to the offence with reference to which cognizance is already taken by the Judicial Magistrate. While cognizance is already taken of the main offence against the accused already arrayed, the supplementary charge-sheet may provide scope for taking cognizance of additional charges or against more accused with reference to the offence already taken cognizance of and the only scope would be for the added offender to seek for discharge after the filing of the supplementary charge-sheet against the said offender.

10. On the basis of law laid down by Hon'ble the Apex Court, thus it is settled view that though the Magistrate is not required to pass a detailed order when taking cognizance on the chargesheet but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed format.

11. While passing a judicial order including the order of taking cognizance of offences pursuant to perusal of charge sheet, as the case is in the instant matter, the Court is required to apply it's judicial mind. The order of taking cognizance can not be passed in stereotype and mechanical manner. The application of mind over the matter must reflect from the order of taking cognizance of offence by the Court, otherwise the same cannot be said a legally passed order.

12. The conduct of Judicial Officer concerned in passing such order purporting to be taking cognizance order on typographed format by filling the blanks is condemnable and deserved to be deprecated.

13. Our High Court has repeatedly assailed and deprecated in number of decisions, the practice adopted by some of the Judicial Magistrate, of passing the order of taking cognizance on typographed format filling the blanks only, and summoning persons as accused, without application of mind and set aside such orders remitting the matter to the concerned Court for passing the order taking cognizance of offence afresh. Even then, the habit of passing such orders is extent.

14. It cannot be said that such judicial officers are not aware of the decision given over their practice to pass order on typographed format containing reflection of application of mind while taking cognizance of offence over complaint, allegations/charge sheet or otherwise on information received from other sources but the instances of passing such orders are still found in their practice.

15. The impugned order dated 16.09.2020, is therefore, set aside, the matter is remitted to the Court concerned for passing the order of taking cognizance on perusal of charge sheet submitted by the police on 11.06.2020, in Case Crime No.204/2020, under Sections 323, 504, 506, 452, 325 of I.P.C. at Police Station Huzurpur, District Bahraich recording satisfaction as to the evidences collected by the Investigating Officer so as to make a finding as to the constitution of offence, if any, thereupon specifically stating the relevant Sections of the offences and whether they are triable by them or not then only to issue the process, like summoning the accused accordingly.

16. The District and Sessions Judge, Bahraich is also required to circulate amongst the officers, the direction issued by the High Court time to time, their decisions alongwith the decision in this case also.

17. Accordingly, the present application under Section 482 Cr.P.C. is disposed of.

18. Deputy Registrar (Criminal) is directed to communicate this order to the Court concerned i.e. Additional Civil Judge (J.D.)/Judicial Magsitrate-II, Bahraich immediately.

Order Date :- 22.3.2021

Saurabh

(Vikas Kunvar Srivastav,J.)