Sanjay Jain And Another vs State Of U.P. And Another
2022 Latest Caselaw 2333 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 92
 
Case :- APPLICATION U/S 482 No. - 25587 of 2021
 
Applicant :- Sanjay Jain And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Shruti Malviya
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Manish Kumar,J.

Heard learned counsel for the applicant, learned AGA for the State and perused the record.

The present petition has been preferred to quash the impugned Charge-Sheet dated 16.11.2020 filed in Case Crime No. 709 of 2019, under Sections 498A, 323, 354, 504, 506, 307 IPC and under Section 3/4 of the Dowry Prohibition Act, Police Station Shamli, District Shamli arising out of Case Crime No. 709 of 2019 and further may be pleased to quash the summoning order dated 01.12.2020 and 25.03.2021 by means of which, bailable warrants have been issued.

This Court vide its order dated 25.04.2022 has granted a weeks' time to the learned AGA to seek instructions in the matter particularly on the point that as to why the impugned summoning order has been passed on a printed proforma without application of judicious mind.

Learned counsel for the applicants has submitted that the impugned cognizance has been taken without applying its judicious mind and summoning order dated 01.12.2020 has been passed by the Chief Judicial Magistrate, Shamli, District Shamli on a printed proforma. It is further submitted that before taking cognizance and issuing summons, the court has to apply its judicious mind and it cannot be passed in a mechanical and routine manner after filing of the charge-sheet, as it has been done in the present case, and hence, the summoning order is liable to be quashed. In support of submissions, learned counsel for the applicant placed reliance on the judgment of this Court passed in the Case of Smt. Rubina Khan Vs. State of U.P. and another (Application Under Section 482 No.7854 of 2021, decided on 10.08.2021. Reliance has further been placed on the judgments of this Court passed in the cases of Ankit Vs. State of Uttar Pradesh reported in 2009 4 ADJ 778, Pankaj Jaiswal Vs. State of Uttar Pradesh and another (Application under Section 482 No. - 11334 of 2021 decided on 09.08.2021, Ashu Rawat Vs. State of Uttar Pradesh and others ( Application under Section 482 No. 13883 of 2020) and Vishnu Kumar Gupta Vs. State of U.P. reported in 2020 0 Supreme (All)784.

On the other hand, learned AGA has submitted that despite the fax sent to the Senior Superintendent of Police, Shamli on 28.04.2022, instructions have not been provided. Fax message sent to the Senior Superintendent of Police, Shamli on 28.04.2022 is taken on record. He has further stated that since the controversy has already been attained finality by the Hon'ble Apex Court as well as by this Court in the cases of Ankit (supra), Pankaj Jaiswal (supra), Rubina (supra), Ashu Rawat(supra) and Vishnu Kumar Gupta (supra), the present matter may be decided finally at this stage.

After hearing the learned counsel for the parties and going through the record, the statutory provisions and as per the law settled, the position which emerges out is that a Court can take cognizance of an offence only when condition requisite for initiation of proceedings before it as set out in Chapter XIV of the Code are fulfilled. Otherwise, the Court does not obtain jurisdiction to try the offences under section 190 (1) of the Cr.P.C. provided that "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.

As per the law settled by Hon'ble Supreme Court and this Court in the cases mentioned herein below would clearly reveals 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 material collected by the Investigating Officer resulted in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject and the orders of Magistrate does not suffers from non-application of judicial mind while taking cognizance of the offence.

In the case of Basaruddin & others Vs. State of U.P. and others, 2011 (1) JIC 335 (All)(LB), the Hon'ble Court was pleased to observe as under:-

"From a perusal of the impugned order, it appears that the learned Magistrate on the complaint filed by the complainant has summoned the accused in a mechanical way filling the date in the typed proforma. Learned Magistrate while taking cognizance of the offence on complaint was expected to go through the allegations made in the complaint and to satisfy himself as to which offences were prima facies, being made out against the accused on basis of allegations made in the complaint. It appears that the learned Magistrate did not bother to go through the allegations made in the complaint and ascertain as to what offences were, prima facie, being made out against the accused on the basis of allegations made in the complaint. Apparently, the impugned order passed by the learned Magistrate suffers from non-application of mind while taking cognizance of the offence. The impugned order is not well reasoned order, therefore, the same is liable to be quashed and the petition deserves to be allowed and the matter may be remanded back to the learned Chief Judicial Magistrate, Lakhimpur Kheri with direction to him to go through the allegations made in the complaint and ascertain as to what offences against the accused were prima facie being made out against the accused on the basis of allegations made in the complaint and pass fresh order, thereafter, he will proceed according to law."

In the case of Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr., AIR 2012 SC 1747, the Hon'ble Apex Court was pleased to observe that 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.

In the case of Sunil Bharti Mittal v. Central Bureau of Investigation, AIR 2015 SC 923, the Hon,ble Apex Court was pleased to observe in paragraph no.47 of the judgment as under:

"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.."

In the case of Darshan Singh Ram Kishan v. State of Maharashtra , (1971) 2 SCC 654, the Hon'ble Court was pleased to observe that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and thereafter, takes judicial notice of the offence. 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.

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 was pleased to observe in paragraph No.8 of the judgment as under:-

"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 "???????? ????? ?? ????????? ??0 ???? ???????? ?????? Crl. Writ No. 19559/08 ????? ???? ????? ??? ????? ???? ?????? 5.11.08 ?????? ???? ???? ??????? ???? ?? ?????? ???"

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."

In the case of Kavi Ahmad Vs. State of U.P. and another passed in Criminal Revision No. 3209 of 2010, wherein order taking cognizance of offence by the Magistrate under Section 190(1)(b) on printed proforma without applying his judicial mind towards the material collected by the Investigating Officer has been held illegal.

In the case of Abdul Rasheed and others Vs. State of U.P. and another 2010 (3) JIC 761 (All). The relevant observations and findings recorded in the said case are quoted below:-

"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."

In the case of Vishnu Kumar Gupta (supra). The relevant observations and findings recorded in the said case are quoted hereunder:-

"10. At this juncture, it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the Cr.P.C., is concerned and the perusal of the case law mentioned herein below would clearly reveal 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 material collected by the Investigating Officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the law on the subject.

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)"

In light of the discussion made hereinabove and law settled, it is clear that the order dated 01.12.2020 passed by learned Chief Judicial Magistrate, Shamli is without application of judicious mind on a printed proforma in mechanical manner and the cognizance and summoning order dated 01.12.2020 cannot be legally sustained as the Magistrate failed to exercise the jurisdiction vested in him.

The impugned cognizance and summoning order dated 01.12.2020 passed by learned Chief Judicial Magistrate, Shamli in Criminal Case No. 7654/09/2020, Case Crime No. 709 of 2019, under Sections 498A, 323, 354, 504, 506, 307 I.P.C. and under Section 3/4 of the Dowry Prohibition Act registered at Police Station Shamli, District Shamli is hereby, quashed. The matter is remitted back to learned Chief Judicial Magistrate, Shamli with a direction to decide afresh 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 within a period of two months from the date of production of a certified/computer generated copy of this order.

Accordingly, the application/petition is partly allowed.

Order Date :- 9.5.2022/Ashish